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2004 DIGILAW 254 (PNJ)

Mangat Ram v. State of Punjab

2004-03-03

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Mangat Ram, Inspector in the Food and Supplies Department, Mukerian, District Hoshiarpur stands convicted under section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 (for short the Act) by learned Special judge, Hoshiarpur vide impugned judgment dated 15.5.1991 and has been sentenced to undergo RI for two years and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo RI for four months. Aggrieved by the impugned judgment of conviction and sentence he has preferred the present appeal. 2. The appellant was Incharge of rural depots. The allegation against him is that Ram Chand the complainant PW8 who was running a depot in village Talwandi Kalan wanted the supply of kerosene oil for the months of August and September, 1990. He had already submitted the indent forms Ex. PK and PL in this respect. On 11.9.1990, he went to the appellant and requested him to supply kerosene oil to his depot for distributing the same to the consumers but the appellant made a demand of Rs. 300/- as bribe from him. It is then the case of the prosecution that Ram Chand told the appellant that he would come on the next date i.e. 12.9.1990 with the money. Instead, he alongwith Jagdish Kumar PW9 went to the office of Vigilance Bureau, Hoshiarpur and informed DSP Vigilance Satya Sarup PW11 about this demand who recorded his statement Ex. PM regarding the demand of bribe money and then the complainant gave him three currency notes of the denomination of Rs. 100/- each. DSP Satya Sarup then applied phenolphthalein powder (PP powder) to those currency notes and noted down its number in the memo Ex. PN. Thereafter those tainted currency notes were handed over to the complainant and he was directed to pay the said notes to the appellant on his demand whereas Jagdish Kumar PW9 was deputed as a shadow witness. DSP Satya Sarup gave the demonstration of the working of the said powder. Thereafter complainant Ram Chand and Jagdish Kumar went in a jeep to Mukerian where the jeep was parked near the godown. One constable was also sent to the police station for the registration of the case on the basis of statement Ex. PM made by Ram Chand. DSP Satya Sarup gave the demonstration of the working of the said powder. Thereafter complainant Ram Chand and Jagdish Kumar went in a jeep to Mukerian where the jeep was parked near the godown. One constable was also sent to the police station for the registration of the case on the basis of statement Ex. PM made by Ram Chand. Ram Chand and Jagdish Kumar were sent to the room of the appellant whereas the remaining party stayed at some distance from the main gate of the office of the appellant. The case of the prosecution then is that the present appellant was found sitting in his room and he demanded bribe money from Ram Chand which was paid to him in the form of tainted currency notes of Rs. 300/-. The appellant held those currency notes in his hands and Jagdish Kumar gave a signal to the police party. DSP Satya Sarup reached the room of the appellant and on seeing the police party, the appellant threw away the tainted currency notes on a handkerchief which was lying on his table. He was apprehended by the DSP and then DSP offered himself to be searched by the appellant. The hands of the appellant were washed with a colourless solution of sodium carbonate and water and that solution became light pinkish. It was sealed in a nip Ex. P5 which was taken into possession vide memo Ex. PR. The currency notes Exs. P2 to P4 lying on the handkerchief from the table of the appellant were also taken into possession vide recovery memo Ex. PQ after tallying their numbers. The handkerchief of the appellant was also washed with the water and solution of sodium carbonate and it also turned to be pinkish. The solution was then sealed in a nip Ex. P5 and the nip alongwith handkerchief were also taken into possession vide memo Ex. PR. On personal search of the appellant, Rs. 407/-, one identity card, a wrist watch and a driving licence were recovered and the same were also taken into possession vide memo Ex. P5. Two indents Ex. PK and PL from a file which was lying on the table of the appellant and a register Ex. P7 were also taken into possession vide memo Ex. PT. 407/-, one identity card, a wrist watch and a driving licence were recovered and the same were also taken into possession vide memo Ex. P5. Two indents Ex. PK and PL from a file which was lying on the table of the appellant and a register Ex. P7 were also taken into possession vide memo Ex. PT. All the memos were attested by Ram Chand, Jagdish Kumar, Pritam Singh AFSO (Assistant Food and Supplies Officer) and ASI Lekh Raj. The appellant was arrested and after the completion of the investigation, he was challaned in the present case. 3. A charge under section 13(2) read with section 7 of the Act was framed against the appellant. 4. The prosecution in support of its case, has examined 11 witnesses in total. PW1 is Sardara Singh Assistant in the Food and Supplies Department. He has proved the sanction order Ex. PA accorded by the Director, Food and Supplies and Special Secretary to Government Punjab, Chandigarh. PW2 is Tarlochan Singh Assistant of the same Department who is also of formal character and has proved the appointment of the appellant. Similarly PW3 Roop Pal, Clerk, another official of the same Department has proved the posting of the appellant as Inspector at Mukerian. Statement of PW4 Romesh Kumar Walia, Sub inspector of the same Department is to the effect that complainant Ram Chand was given the licence Ex. PE for running the depot in which he could sell the kerosene oil as well. PW5 Constable Bhupinder Singh, PW6 Constable Nirmal Singh and PW7 Head Constable Surinderpal Singh have tendered their affidavits Ex. PG, PH and PJ respectively. PW8 is Ram Chand complainant who has reiterated the case of the prosecution against the present appellant. PW9 Jagdish Kumar the decoy witness has not supported the case of the prosecution and has categorically stated that he neither accompanied Ram Chand to the office of Vigilance Bureau nor to the office of the appellant. He has further stated that the appellant never demanded any bribe money from Ram Chand and no such bribe money was paid by Ram Chand in his presence. He was declared hostile and was cross-examined by Public Prosecutor. PW10 is Pritam Singh AFSO who has proved the register Ex. P7 maintained in their office for the supply of kerosene oil. He has further stated that the appellant never demanded any bribe money from Ram Chand and no such bribe money was paid by Ram Chand in his presence. He was declared hostile and was cross-examined by Public Prosecutor. PW10 is Pritam Singh AFSO who has proved the register Ex. P7 maintained in their office for the supply of kerosene oil. He has further stated that after the Vigilance Bureau had conducted the raid he was called at the spot and DSP Satya Sarup PW11 had held the present appellant by his arms and thereafter other formalities like washing hands of the appellant with water and colourless solution of sodium carbonate were done in his presence. He also talks of recovery of currency notes lying on handkerchief and thereafter the handkerchief was also dipped in the water and solution. He also talks of the recovery of certain articles effected from the personal search of the appellant. All the memos were signed by this witness. PW11 Satya Sarup DSP is the Investigating Officer of this case. I need not enter into details so far as his part of investigation is concerned as the same has been described in the preceding paras. 5. The stand taken by the appellant as is clear from his statement under section 313 Criminal Procedure Code or written statement filed on his behalf after the incriminating evidence was put to him is that one Surinder Singh Petrol Pump owner of Mukerian had become offended againt him as he was not obliged by him on certain occasions and he was instrumental in falsely implicating him after procuring Ram Chand as a trap witness. It is then asserted by the appellant that on 12.9.1990 when Ram Chand complainant had entered his office, he wanted to place some currency notes on his table which he did not accept and pushed them aside and told him to take away the money. In the meanwhile the police arrived there and arrested him. Thereafter he was taken to police station Mukerian where some formalities were completed. It is then said that no indent for the month of August, 1990 was submitted in his office and in fact indent for September, 1990 was also placed on his table by some one in his absence before the raid. Since the indent Ex. Thereafter he was taken to police station Mukerian where some formalities were completed. It is then said that no indent for the month of August, 1990 was submitted in his office and in fact indent for September, 1990 was also placed on his table by some one in his absence before the raid. Since the indent Ex. P1 was not attested by the Village Sarpanch, he did not make any endorsement thereon. In defence the appellant has produced one Nirmal Singh, Clerk in the office of District Food and Supplies Controller, Hoshiarpur as DW1 to prove the instructions Ex. DC. 6. After appreciating the entire evidence, the learned Special Judge has convicted and sentenced the appellant as indicated above. 7. I have heard Mr. Baldev Singh, learned Sneior Advocate appearing for the appellant and Mrs. R.K. Nihalsinghwala, learned Deputy Advocate General, appearing for the State of Punjab. With their assitance, I have also gone through the entire record minutely. 8. The main argument advanced by learned counsel for the appellant is that in the present case the basic ingredient of demand of money is not proved by any independent source as Jagdish Kumar the shadow witness who, according to the prosecution, had gone to the office of Vigilance or to the office of the appellant has not supported the case of the prosecution and in fact has categorically stated, when stepped into witness box, that neither he went to the office of Vigilance Department with Ram Chand complainant nor any demand or payment was made by the complainant in his presence. According to the learned counsel, this by itself is a material lacuna which goes to the root of the matter and speaks volumes of the false implication of the present appellant. It is then contended that mere recovery of money is not enough when no independent witness has come forward to prove the demand of money. 9. The other contention raised by the learned counsel for the appellant is that there could not be any possible reason for the appellant for demanding the money for the release of the kerosene oil on the basis of indents Ex. PK and PL as the said indents were not forwarded by the AFSO (Assistant Food and Supply Officer) and in the absence of clearance by the AFSO, the present appellant could not release the quota of kerosene oil. PK and PL as the said indents were not forwarded by the AFSO (Assistant Food and Supply Officer) and in the absence of clearance by the AFSO, the present appellant could not release the quota of kerosene oil. It is further contended that as per the instructions issued by Director, Food and Supplies Department, kerosene oil to the retailer catering to local areas could be released only after obtaining a certificate on the indent from the concerned Sarpanch of the village indicating that the kerosene oil earlier obtained by the retailer againt the previous permit has been properly distributed by him. Developing his arguments further, the learned counsel has submitted that two indents for the months of August and September, 1990 Ex. PK and PL allegedly shown to have been recovered also indicate that the present appellant has been falsely implicated in this case by Ram Chand complainant for certain ulterior motives and for that the defence taken by the appellant in his statement under section 313 Criminal Procedure Code becomes more probable on the face of it. 10. In support of his arguments, learned counsel relies upon the judgment of Honble Apex Court rendered in Meena (Smt.) w/o Balwant Hemke v. State of Maharashtra, 2000 SCC(Crl.) 878, Satbir Singh v. State of Haryana, 2000(1) RCR(Crl.) 487, Harnek Singh v. State of Punjab, 2000(2) RCR(Crl.) 403 and Kuldip Rai v. State of Punjab, 2002(2) RCR(Crl.) 781. 11. The learned counsel on the basis of the aforesaid submissions, prays for the acquittal of the appellant. 12. The learned State counsel has refuted the arguments advanced on behalf of the appellant and submits that even if the shadow witness has not supported the case of the prosecution, the demand, acceptance or the recovery is proved from the appellant by other material evidence. It is then contended that there is no reason to disbelieve Ram Chand the complainant in this case or as a matter of fact Satya Sarup PW11, the DSP of the Vigilance Department who has no reason to falsely implicate the appellant in this case. 13. After hearing both the sides at length and perusing the entire record minutely, I am of the view that the prosecution has not been able to bring home the guilt to the appellant beyond shadow of reasonable doubt. My reasons for arriving at the said conclusion are set out as under :- 14. 13. After hearing both the sides at length and perusing the entire record minutely, I am of the view that the prosecution has not been able to bring home the guilt to the appellant beyond shadow of reasonable doubt. My reasons for arriving at the said conclusion are set out as under :- 14. Admittedly, the position is that Jagdish Kumar the shadow witness has not supported the case of the prosecution and we are left mainly with the statement of Ram Chand PW8. He is a bribe giver. He is normally to be treated as an accomplice. Independent evidence is required to corroborate the testimony of the complainant to the effect that the appellant in fact had demanded the money. I have minutely gone through the statement of Jagdish Kumar PW9 the shadow witness who has not supported the prosecution version at all. The learned Public Prosecutor could not derive any benefit out of the cross-examination. In his examination-in-chief, he has categorically stated that the appellant never demanded any money from Ram Chand in his presence. He has also stated that no bribe money was ever paid by Ram Chand in his presence and that no amount was recovered from the appellant in his presence. In his cross-examination, he has admitted that Ram Chand PW had taken him to police station Mukerian where the DSP got his signatures on the memos and he had signed those memos under the influence of DSP. This all goes to show that Jagdish Kumar in fact was procured witness in this case and actually nothing had happened in his presence. 15. It has been observed by Honble Apex Court in Subash Parbat Sovane v. State of Gujarat, 2003(2) RCR(Crl.) 541 (SC) that in the absence of demand and acceptance, the accused cannot be held guilty under section 13(1)(d) of the Act. 16. In a latest judgment of this Court rendered in Sarwan Singh v. State of Punjab, 2004(1) RCR(Crl.) 368 (P&H), the accused-appellant was acquitted on the ground that the independent witness had not corroborated the testimony of the complainant on the point of demand of money and the mere recovery was not considered to be enough to hold the conviction. 16. In a latest judgment of this Court rendered in Sarwan Singh v. State of Punjab, 2004(1) RCR(Crl.) 368 (P&H), the accused-appellant was acquitted on the ground that the independent witness had not corroborated the testimony of the complainant on the point of demand of money and the mere recovery was not considered to be enough to hold the conviction. My view is also strengthened by another judgment of this Court rendered in Ram Parkash v. State of Punjab, Criminal Appeal No. 149-SB of 1992 decided on July 16, 2003 (un-reported) in which the accused-appellant was acquitted on the ground that the independent witness of demand and recovery was given up an unnecessary and it was presumed that there was no independent corroboration to the trap. This infirmity was considered to be a serious one. In the instant case as well, the independent witness does not support the case of the prosecution and it can be safely said that there is no independent corroboration with regard to the trap. This basic lacuna, in my considered view, is enough to throw doubts over the case of the prosecution. 17. There is yet another angle to see the case of the prosecution with a pinch of salt. The case set up by the prosecution is that Ram Chand PW8 wanted the release of the kerosene oil for the months of August and September, 1990. I have seen both the indents Ex. PK for the month of August and Ex. PL for the month of September. Ex. PK is dated 1.8.1990 whereas Ex. PL is dated 1.9.1990. Each of the indent is with respect to the release of 9000 litres of kerosene oil for one month. Ram Chand PW8 in his cross-examination has categorically stated that he had made a complaint to Pritam Singh AFSO for the release of kerosene oil for August, 1990. The explanation given is that he was not supplied kerosene oil as it was told that the kerosene would be supplied after the receipt of supply of kerosene oil. Ram Chand PW8 in his cross-examination has categorically stated that he had made a complaint to Pritam Singh AFSO for the release of kerosene oil for August, 1990. The explanation given is that he was not supplied kerosene oil as it was told that the kerosene would be supplied after the receipt of supply of kerosene oil. Pritam Singh AFSO, on the other hand, in his cross-examination has stated that in the first week of September, 1990, Ram Chand had come to him for the supply of kerosene and he had told him to give the indent for the supply of the kerosene oil but at that time he had not made any complaint to the effect that the appellant was not supplying any kerosene oil to him or was making any demand for bribe money. As per the instructions, Ex. DC, the indent for the release of the quota of kerosene oil was to be submitted alongwith certificate of the Sarpanch showing that the earlier kerosene oil was properly distributed by the retailer. No doubt Pritam Singh has stated in his cross-examination that in the interest of public, the kerosene oil can be supplied to the depot holder even without the resolution of the Gram Panchayat but normally the resolution of Gram Panchayat or attestation of the Sarpanch for such supply is the requirement as per instructions issued by the Food and Supplies Department. However, he also admits that the indents have to be recommended by the AFSO upto 25th of every month. This all goes to show that Ram Chand for certain ulterior motives had made a trap to falsely implicate the present appellant by developing the story of two indents and the explanation given by the appellant that no indent for kerosene oil for the month of August 1990 was ever submitted in the office appears to be plausible. It is not believable on the face of it that had Ram Chand submitted the indent for the month of August, 1990 on 1.8.1990 instead of submiting it by 25th of the previous month, he would have waited upto 11.9.1990 for the release of kerosene oil for whole of the month. It is not believable on the face of it that had Ram Chand submitted the indent for the month of August, 1990 on 1.8.1990 instead of submiting it by 25th of the previous month, he would have waited upto 11.9.1990 for the release of kerosene oil for whole of the month. It appears that the complainant had not distributed his earlier quota properly and his subsequent indents were lacking the necessary formalities for the purpose of release of fresh quota and for that he was not being obliged and ultimately he projected the case of demand of bribe by the appellant. 18. I have also seen Ex. PL the register showing the distribution of the kerosene oil to different quarters and it indicates that in the month of August, 1990 a large quantity of kerosene oil was received and distributed. The statement of Ram Chand that he was not supplied the kerosene oil for the month of August by the appellant on the ground that it would be supplied only after the receipt of supply of kerosene oil, does not appeal to the judicial conscience at all. From the aforesaid factual position, it can be safely inferred that there was no occasion for the appellant to make a demand for the bribe. 19. The explanation put forth by the appellant appears to be quite probable. No doubt phenolphthalein test is showing the positive result but indisputable the currency notes in question were not recovered from the pocket or even from the drawer of the table of the appellant. As per the prosecution case, the appellant after seeing the police party had thrown the currency notes on the handkerchief whereas defence set up by the appellant is that on 12.9.1990 when Ram Chand complainant had entered his office, he wanted to place the currency notes on his table and when he did not accept it and pushed aside and told him to take the money back, the police arrived at the spot at that juncture and arrested him. It appears that in the said process the appellant might have touched the currency notes when they were put on his handkerchief. It appears that in the said process the appellant might have touched the currency notes when they were put on his handkerchief. The above said infirmity coupled with the fact that the shadow witness has not supported the prosecution case with respect to taking of the bribe by the appellant or even demand at that particular moment leads to drawn an irresistible conclusion that the prosecution has not been able to bring home the guilt of the appellant. The judgment relied upon in Meenas case (supra) squarely covers the facts of the present case. 20. It is all the same pertinent to mention that it can hardly be gain said that the evil of corruption has persistently creeped into various levels despite the stringent history of the Act from 1947. Although the hydraheaded dragon of corruption has got to be lynched, yet for practical purposes, each case has to be tested on the touch stone of judicial scrutiny. 21. To sum up, the sum total of the aforesaid discussion is that the case of the prosecution is not free from doubt so as to prove the charge againt the appellant. Consequently, the present appeal is allowed and the appellant stands acquitted. He shall be discharged of his bail/surety bond forthwith. Appeal allowed.