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2004 DIGILAW 832 (PNJ)

State of Punjab v. Kushal Singh Pathania

2004-08-04

M.M.KUMAR

body2004
JUDGMENT M.M. Kumar, J. - This appeal filed under Section 378 of the Code of Criminal Procedure, 1973 (for brevity, Criminal Procedure Code) is directed against the judgment of acquittal dated 26.9.1994 passed by the Special Judge, Hoshiarpur. The accused-respondent has been absolved of the charge framed under Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity, the Act). A Division Bench of this Court has granted leave to appeal to the State on 18.10.1995 directing the issuance of bailable warrants to the accused-respondent. 2. Few facts would be necessary to appreciate the arguments raised by the parties. The accused-respondent has been working in the Punjab State Electricity Board (for brevity, the Board) and during the relevant period was posted as a Sub-Divisional Officer at Sub-Station Kandhala Jattan. He is alleged to have demanded illegal gratification from one Jarnail Singh the Manager of Motia Oil Industry, Khokhar by stating that an Xen had then joined who is very strict person and in order to avoid electricity cut imposed during peak hours which applied to Motia Oil Industry also and to avoid harassment on that account, it has to pay Rs. 3,000/- P.M. regularly to him. The accused- respondent is alleged to have demanded from Jarnail Singh, Manager a sum of Rs. 3,000/- P.M. regularly and a sum of Rs. 2,000/- was settled as a bribe. On 3.8.1992 Jarnail Singh along with one Jaswinder Singh alleged to have approached the D.S.P. Vigilance for reporting the alleged demand of illegal gratification by the accused-respondent. His statement Ex. PD is alleged to have been recorded and preparation for laying the trap was made. On Roshan Lal, Tehsildar was also joined by the D.S.P. Vigilance. 3. It is alleged that on 4.8.1992 when the accused-respondent demanded illegal gratification, Jarnail Singh, the Manager handed over the currency notes to accused-respondent who put those currency notes in the pocket of his shirt. Thereafter, on the signal given by Jaswinder Singh the shadow witness, the Vigilance staff entered the factory premises and it is alleged that the accused-respondent was caught red handed and tainted money of Rs. 2,000/- was recovered from the pocket of his shirt. The currency notes of the denomination of Rs. 500/- Exs. P-3 to P-6 which are alleged to have been treated with phenolphthalene powder. The water turned pink when the currency notes were put in water containing sodium carbonate. 2,000/- was recovered from the pocket of his shirt. The currency notes of the denomination of Rs. 500/- Exs. P-3 to P-6 which are alleged to have been treated with phenolphthalene powder. The water turned pink when the currency notes were put in water containing sodium carbonate. The currency notes were the same which were handed over by the D.S.P. Vigilance to the complainant as the currency notes recovered from the pocket of the shirt of the accused-respondent. Thereafter, formal first information report Ex. PD/2 was recorded and the samples of the hand wash were sent to the Forensic Science Laboratory, Punjab, Chandigarh which has reported in its report that in both the nips sodium corbonate and phenolphthalene was present and the colour of phenolpthalne turns pink in solution of sodium corbonate. The report has been exhibited as Ex. PN. Sanction for prosecution of the accused-respondent was received (Ex. PA) from the competent authority and thereafter the challan was presented. 4. The prosecution examined 10 witnesses out of 14 witnesses. PW-1 Swaran Chand and PW-2 Devinder Singh have produced the relevant record concerning the accused-respondent. They further deposed that the electricity supply to Motia Oil Industry is made from the independent Feeder S.S.E. Tanda. PW-3 Gian Singh is a Superintendent who brought the posting order of accused-respondent showing that he was working as Sub-Divisional Officer at Sub-Station Kandhala Jattan. 5. The substantive evidence is that of Jarnail Singh complainant who appeared as PW-6 and Jaswinder Singh, the shadow-witness who appeared as PW-7. All the three witnesses supported the prosecution version. Similarly, Roshan Lal, Tehsildar who appeared as PW-8 has deposed in favour of the prosecution. Their detailed statements along with their cross-examinations are available in paras 11 to 18 of the judgment of learned Special Judge. 6. In his statement made under Section 313 Criminal Procedure Code, the accused-respondent pleaded innocence and claimed that on account of repeated violations by Motia Oil Industry by consuming electricity at peak hours, the factory was raided by higher officers on a number of occasions and a fine was also imposed. He further stated that owner of Motial Oil Industry implicated him in this false case by calling him from M/s. Saini Autos another commercial concern situated close to Motial Oil Industry. He denied having ever demanded any money and the statements made by the prosecution witnesses were alleged to be false. 7. He further stated that owner of Motial Oil Industry implicated him in this false case by calling him from M/s. Saini Autos another commercial concern situated close to Motial Oil Industry. He denied having ever demanded any money and the statements made by the prosecution witnesses were alleged to be false. 7. The version of the accused-respondent found substantive corroboration from the statement made by DW-1 Inder Singh who is an eye witness and a supplier of sunflower to Motia Oil Industry. He has deposed that he was present at 2.30 P.M. on 4.8.1992 in the factory and he saw that Manager Jarnail Singh was trying to put some currency notes in the pocket of the shirt of the accused- respondent which the latter did not accept. DW-2 Kamaljit Singh is a worker working in Motia Oil Industry at Khokhar who was posted there in August, 1992. His name is entered as a labourer in the pay roll. He also made the statement corroborating the statement of Inder Singh DW-1. The accused-respondent also examined DW-3 Ravinder Dhami, Assistant Executive Engineer, DW-4 Baljit Singh, Junior Engineer and DW-5 Swaran Singh, Sub-Divisional Clerk. 8. After detailed examination and critical analysis of the whole evidence adduced by the parties, the learned Special Judge concluded that the shadow- witness Jaswinder Singh PW-7 was not only friendly with PW-6 Jarnail Singh complainant but had worked in Motia Oil Industry. The Special Judge did not feel satisfy that the charge has been brought home and held that the prosecution has failed to prove the allegation against the accused-respondent and observed as under :- "From the entire evidence produced by the prosecution as well as in the defence, the version of the prosecution is not stands proved. Jarnail Singh stated in his evidence that Jaswinder Singh is not working in their factory, but there is sufficient material on the file that Jaswinder Singh was also working with the Motia Oil Mill. The main ground of the complainant Jarnail Singh is that accused demand Rs. 3,000/- for the Xen which had recently joined. There is no evidence, not even a word that accused ever demanded illegal gratification for himself. It has been admitted by the PW that accused had been visiting their factory premises so many times prior to the incident, but he never demanded any illegal gratification. 3,000/- for the Xen which had recently joined. There is no evidence, not even a word that accused ever demanded illegal gratification for himself. It has been admitted by the PW that accused had been visiting their factory premises so many times prior to the incident, but he never demanded any illegal gratification. Now taking into consideration the crucial date of incident i.e. 4.8.1992 the case of the prosecution is that accused demanded illegal gratification, but there is not an iota of evidence on the file to prove that in those days any new Xen joined from whom accused might have demanded illegal gratification. It was the duty of the prosecution to prove that particular Xen was appointed or recently joined and for him accused was demanding illegal gratification." 9. The other serious discrepancies in the prosecution case have also been pointed out. It has been proved that the complainant or Motia Oil Industry is in the habit of filing complaints against the officers of the Board. The observations of the Special Judge with regard to those discrepancies read as under :- "There are serious discrepancies in the statements of the P.Ws. Addl. P.P. tried to argue that due to lapse of time some discrepancies are bound to occur, but in such cases where both the complainant and shadow witnesses are working in the same Firm and as M/s. Motia Oil Mills was known for violating the rules laid down by the P.S.E.B. during the peek load hours. To prove this fact there is a copy of the plaint filed by the Firm against P.S.E.B. and judgment is delivered and subsequently raid was conducted by the P.S.E.B. officials and the factory was fined for a substantive amount or it was ordered to close the factory for three days. Not only this two F.I.Rs. have been produced to show that subsequently some other officials were also trapped. It has been proved by the accused that he was present in the office of M/s. Saini Autos in an official capacity and he was called and efforts were made to implicate him in the present case. It is not believable that any police accompanied the complainant and Jaswinder Singh. Jaswinder Singh and complainant went inside the factory premises and police remained present outside the factory premises and under these circumstances accused would go inside the factory premises to accept the bribe. It is not believable that any police accompanied the complainant and Jaswinder Singh. Jaswinder Singh and complainant went inside the factory premises and police remained present outside the factory premises and under these circumstances accused would go inside the factory premises to accept the bribe. It is not believable that the accused would go to the office of the factory premises to trap himself. It is unnatural. No prudent man would enter in the factory premises or demand the illegal gratification knowing fully well that the police is outside the factory premises. Moreso, it is not the case of the prosecution that accused demanded illegal gratification for himself." 10. Apart from the failure of the prosecution to prove its case beyond any reasonable doubt, the Special Judge was persuaded to accept the defence version which was able to prove that there were violations of the rules of the Board by Motia Oil Industry and a fine of Rs. 52,000/- was imposed on it on 21.1.1992 vide Ex. D.8. There was prohibition contained in the circular issued by the Board prohibiting the consumption of energy during peak hours and the details of various raids have also been proved. It has also been accepted that the accused-respondent was called in the factory by the complainant on the pretext of examining the seal of the meter on the fateful day. The fact that there was intercom facility at the door of the factory and the raiding party used to be stopped at the gate for a sufficient period to stop the violation of the circular concerning consumption of energy at peak hours and after starting the generator, the raiding party used to be permitted to enter the factory. The aforementioned version has been accepted by the Special Judge in paragraph 25 of the judgment and the same reads as under :- "Not only the admission of prosecution witness, but there is a volume of defence evidence to prove the irregularities on behalf of the Motia Oil Mill. In Punjab general direction was given by the P.S.E.B. to regulate the electricity and it has been proved in defence that Motia Oil Mill of the complainant was violating the rules during the consumption of electricity. In Punjab general direction was given by the P.S.E.B. to regulate the electricity and it has been proved in defence that Motia Oil Mill of the complainant was violating the rules during the consumption of electricity. Not only this owners and the officials of the Motia Oil Mill used to misbehave with the person, who came to check their Meter to see consumption used by the Meter was installed inside the factory premises which was subsequently on the order of the P.S.E.B. was to be shifted on the main gate of the factory. It is in the defence evidence that there is telecom fitted on the main gate with one official, who remained always present on the gate. It is also proved by the accused in defence that whenever he used to check the factory premises then sometime they are not allowing him to enter inthe factory premises by not opening the gate till further information was being given about their arrival through the intercom, as the electricity consumption is stopped and then complainant used to open the gate. It has been proved not only by oral evidence but by way of documentary evidence." The Special Judge has also entertained a doubt about the prosecution version because there was no occasion for the accused-respondent to demand illegal gratification as the accused-respondent had been visiting the factory of the Motia Oil Industry prior to his visit on 4.8.1992 and on none of the earlier occasions he had asked for any illegal gratification. It has also been found that the violation of consumption of energy during the peak load period was actionable only on the instructions of the Executive Engineer. Tanda and there were two electricity meters fitted to see the consumption of energy by the factory one of the which was at the factory premises and the other one at the Board office at Tanda. The accused-respondent could have raided the factory on the instructions of Executive Engineer, Tanda as he could not have any knowledge. The accused-respondent or any other senior officer was not competent to give relaxation for grant of consumption during peak hours. It is also pertinent to point out that the complainant was asked by the owner of the factory to implicate the accused-respondent. 11. On the basis of the aforementioned view and critical analysis of the whole evidence, the learned Special Judge acquitted the accused-respondent. 12. It is also pertinent to point out that the complainant was asked by the owner of the factory to implicate the accused-respondent. 11. On the basis of the aforementioned view and critical analysis of the whole evidence, the learned Special Judge acquitted the accused-respondent. 12. Mr. Sukant Gupta, learned State counsel has argued that one of the reasons given by the Special Judge for recording acquittal of the accused-respondent is that the prosecution has failed to prove that the accused-respondent demanded illegal gratification for himself. According to the learned counsel such a reasoning is not commendable because once illegal gratification has been demanded either by the accused-respondent for himself or for any one else, the same would constitute the offence under Section 13(1) punishable under Section 13(2) of the Act. Referring to the language of Section 13 read with Sections 8 and 9 of the Act, the learned State counsel has argued that even if the accused-respondent has demanded illegal gratification for any other person, he would be criminally liable. The learned counsel has placed reliance on a judgment of the Supreme Court in the case of Dharam Vir Singh v. State of U.P., 1994 SCC(Crl.) 195. He has also attacked the judgment of the Special Judge by arguing that PW-4 Amrik Singh, D.S.P. Vigilance has himself offered for his own search as is clear from his statement as noticed by the learned Special Judge in paragraph 2 of its judgment. The learned counsel has maintained that on that account also the order of acquittal is liable to be set aside. The last argument raised by the learned counsel is that the discrepancies pointed out by the Special Judge are of minor nature and the prosecution has proved its case as the complainant PW-6, shadow-witness PW-7 and independent witness Roshan Lal Tehsildar PW-8 along with the statement of PW-4 Amrik Singh D.S.P. have proved the prosecution version beyond all reasonable doubt. According to the learned counsel, the minor discrepancies pointed out by the Special Judge cannot constitute the basis for recording a finding of acquittal. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Ram Ishwar Choudhary v. State of Bihar, 2000(10) SCC 157 and a judgment of Delhi High Court in the case of Sham Sarup Bhatnagar v. State (Delhi), 1983 Crimes 77. 13. Mr. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Ram Ishwar Choudhary v. State of Bihar, 2000(10) SCC 157 and a judgment of Delhi High Court in the case of Sham Sarup Bhatnagar v. State (Delhi), 1983 Crimes 77. 13. Mr. K.S. Dadwal, learned counsel for the accused-respondent has argued that the whole case of the prosecution is false and is actuated by an unscrupulous consumer of energy who was frustrated on account of repeated raids and fine imposed on him. It was at his instance that an effort was made to falsely implicate the accused-respondent in such a case under the Act. According to the learned counsel, this Court may reappreciate the evidence in order to reach its own independent conclusion but if two views are possible, and one of the two views has been taken by the trial court, then this Court may not prefer its own view in the absence of the conclusion that no reasonable man could agree with the view taken by the trial Court as it is absolutely perverse. The learned counsel has also argued that the accused- respondent would enter the factory premises when he was called by complainant Jarnail Singh on the pretext of checking the seal of the meter installed in the factory premises. The learned counsel has also pointed out that it has been admitted by Jarnail Singh PW-6 that PW-7 Jaswinder Singh the shadow- witness was present at the time of handing over currency notes to the accused-respondent. Attacking the credentials of PW-6 Jarnail Singh, the learned counsel has pointed out that he is a liar as he denied the fact of earlier raids on the factory premises. He has referred to an admission made by this witness regarding availability of intercom facility at the gate of the factory where an attendant is kept on duty round the clock. This witness also denied the receipt of letters dated 25.7.1992 and 29.7.1992 sent by the accused-respondent giving warning to Motia Oil Industry that the gate of the factory was not opened when he came for a surprise visit and the factory premises were not allowed to be checked. He also denied the imposition of fine of Rs. 52,000/- which has been proved by Ex. D-8 dated 20.1.1992. Ex. He also denied the imposition of fine of Rs. 52,000/- which has been proved by Ex. D-8 dated 20.1.1992. Ex. D-7 is another document showing the issuance of directions to Motia Oil Industry to shift the meter from the factory premises to a place near the gate. 14. The learned counsel then referred to the deposition of DW-1 Inder Singh who supplied sunflower to the factory and was present in the factory premises on 4.8.1992 at 2.30 P.M. According to the statement made by DW-1 Inder Singh and DW-2 Kamaljit Singh a worker of the factory, it was complainant Jarnail Singh PW-6 who was trying to put currency notes in the pocket of the shirt of the accused-respondent and he did not accept the same. According to the learned counsel, there was neither any occasion nor any intention to demand any illegal gratification because the circular with regard to prohibition of consumption of energy during peak hours could not be relaxed by any officer. The learned counsel has argued that the accused-respondent has been visiting the factory premises since long and he had never demanded any illegal gratification which fact has been admitted by Jarnail Singh PW-6 (the complainant). The prosecution has also failed to prove the allegation that the illegal gratification was demanded for some other officers. 15. After hearing learned counsel for the parties at a considerable length, I am of the view that this appeal is devoid of merit and is, thus, liable to he dismissed. After a detailed reference to the prosecution and defence evidence, a reasonable doubt has arisen with regard to the commission of offence by the accused-respondent. It is not unknown that the factory owners indulge in violation of the circulars regulating the timings of consumption of energy. The record of Motia Oil Industry is not beyond reasonable doubt because it has been proved that there was a fine of Rs. 52,000/- on this factory on 20.1.1992 as there was violation of the circular issued by the Board. It has also come in evidence that Motia Oil Industry out of frustration has been lodging first information reports against other officers as is evident from Ex. D-19 and D- 20. There is also a reasonable doubt as no statement has been made by PW-4 Amrik Singh D.S.P. Vigilance showing that he himself offered for his personal search. It has also come in evidence that Motia Oil Industry out of frustration has been lodging first information reports against other officers as is evident from Ex. D-19 and D- 20. There is also a reasonable doubt as no statement has been made by PW-4 Amrik Singh D.S.P. Vigilance showing that he himself offered for his personal search. A reference to the statement made by D.S.P. Vigilance would reveal that he failed to make any such statement before the Court. The statement of D.S.P. Vigilance reads as under :- "In the month of August, 1992, I was posted as D.S.P. Vigilance Bureau, Hoshiarpur. The investigation of this case was taken up by me. I recorded the statements of Nirmal Singh, Gian Singh and MHC Bakhshish Singh. After completion of the investigation I challaned the accused in this case." 16. It is only in the challan papers where it has been recorded that D.S.P. Vigilance himself offered for personal search. But the statement could not ipso facto be accepted as the witness has not offered for cross-examination. Therefore, the benefit given by the Special Judge in favour of the accused- respondent on the basis of a judgment of this court in Sushil Kumar v. State of Punjab, 1974 Chandigarh Law Reporter 193 is meritorious. It is pertinent to mention that this Court in Sushil Kumars case (supra) has taken the view that failure of a police officer to offer himself for search by the accused, then search conducted on the accused is absolutely illegal and acquittal is bound to follow. 17. There are other substantive reasons to agree with the view taken by the Special Judge. PW-7 Jaswinder Singh who is a shadow-witness was present with PW-6 Jarnail Singh, the complainant in the factory premises and was not at all a shadow-witness who might have given signal to the raiding party. It is also doubtful that the accused-respondent would be able to enter the factory premises when the police party is stationed outside. The credibility of Jarnail Singh PW-6 is also open to doubt because he has denied the raids conducted on the factory premises and the imposition of fine of Rs. 52,000/- on 20.1.1992 vide Ex. D-8. He is the Manager of the factory and was supposed to know the details but he deliberately told a lie. The credibility of Jarnail Singh PW-6 is also open to doubt because he has denied the raids conducted on the factory premises and the imposition of fine of Rs. 52,000/- on 20.1.1992 vide Ex. D-8. He is the Manager of the factory and was supposed to know the details but he deliberately told a lie. The conduct of the factory Motia Oil Industry is also far from satisfactory which indulged in violation of law. The availability of intercom facility at the door of the factory to alert its workers for stopping the consumption of energy at the peak hours and switching on the generator is a tell tale story of the factory. 18. It is also pertinent to mention that the statement made by the accused- respondent under Section 313 Criminal Procedure Code stands corroborated in material particulars by the statements of independent witnesses like Inder Singh DW-1, Kamaljit Singh DW-2 and Baljit Singh, Junior Engineer, DW-3. It would be appropriate to reproduce to extenso the statement of accused-respondent recorded under Section 313 Criminal Procedure Code which reads as under :- "I am innocent. M/s. Motia Oil Industry used to work at Peek (peak ?) load hours and there were many complaints against that industry in the department and their premises were raided many times and warnings were also issued to them. The said industry filed a civil suit against the P.S.E.B. and also impleaded S.D.O. Kandhala Jattan and Xen Bhogpur as proforma defendants. That suit was in the court of Sub-Judge Dasuya. I was also summoned as witness by that concern, but they dropped me because I cannot help them and cannot go against the rules of P.S.E.B. Ultimately they lost the case. Then there was a raid on the premises of that concern by me on 25.7.1992. They did not open the main gate for checking for more than half an hour and during that period they stopped the supply of the electricity and started generator and then opened the gate. I made a report against them to the Xen Bhogpur and also gave them notice, but they did not leave these mal-practices. In October, 1992 Xen Flying Squad, Hoshiarpur of the P.S.E.B. found the irregularities and mal-practices in that concern. They had extended the load of electricity unauthorisedly. They were fined Rs. 52,000/- and their factory remained closed for 3/4 days. In October, 1992 Xen Flying Squad, Hoshiarpur of the P.S.E.B. found the irregularities and mal-practices in that concern. They had extended the load of electricity unauthorisedly. They were fined Rs. 52,000/- and their factory remained closed for 3/4 days. On the date of alleged occurrence I had gone to M/s Saini Autos concern which is quite near to M/s Motia Oil Industry and I was called from that place saying that the workers of our department had broken the seals of the meters and they should be restored. I went to that place where the complainant and the shadow witness were already present. Meanwhile, the Vigilance Staff entered the premises. At that time the complainant was trying to put the money in my pocket which I was keeping it away by my hand and in that process the pocket of my shirt also torn. They took me to the police station, where they falsely implicated me in this case, Jaswinder Singh had come to the Saini Autos to call me." 20. The aforementioned statement of the accused-respondent stands substantively corroborated by the statement of DW-Inder Singh, DW-2 Kamaljit Singh and DW-4 Baljit Singh because all of them have stated that the accused- respondent was called from M/s Saini Autos a concern which is situated quite near to Motia Oil Industry on the pretext that the workers of the department had broken the seal of the meter and the seal should be restored. It has also been stated by the eye witness that the accused-respondent was not accepting the illegal gratification and the tainted money was being put in the pocket of his shirt. 21. Even otherwise, it is well settled that this Court would not reappreciate the evidence in order to record a different view than the one taken by the trial Court unless it comes to the conclusion that the view taken by the Special Judge is so perverse that no reasonable man would record such a conclusion especially when it is considering an appeal against acquittal under Section 378 Criminal Procedure Code In this regard reliance could be placed on the judgment of the Supreme court in the case of Bhim Singh v. State of Haryana, 2002(10) SCC 461. Similar view has been taken in the case of Jagan M. Seshadri v. State of T.N., 2002(9) SCC 639 and State of Punjab v. Kuldip Prakash, AIR 1981 Supreme Court 1008. A perusal of Paragraph 9 of the judgment in Bhim Singhs case (supra) would reveal the governing principles applicable to appeals against acquittal which reads as under :- "An appellate court entertaining an appeal from the judgment of acquittal by the trial Court though entitled to reappreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine. In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the appellate court comes to the conclusion that the view taken by the trial Court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial Court is not based on any material on record, it should not merely because another conclusion is possible reverse the finding of the trial Court. In the instant case the trial Court had taken a view which the High Court has not held to be either perverse, unreasonable or a finding which is not based on evidence, still on re-appreciation of the evidence, the High Court came to a different conclusion which on facts of this case and on the basis of the ratio of the law laid down by this Court inthe above cited cases cannot be sustained." 22. It is, thus, evident that the view taken by the Special Judge is a possible view and it cannot be concluded that no reasonable man would take that view. There are number of reasonable doubts against the prosecution version besides doubts with regard to credibility of PW-6 Jarnail Singh complainant as already noticed in the paras above. Therefore, it is not a fit case where judgment of the Special Judge is liable to be reversed. The appeal is, thus, without any merit. For the reasons stated above, this appeal fails and the same is dismissed. Appeal dismissed.