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2004 DIGILAW 884 (PNJ)

Lalit Kumar v. State of Punjab

2004-08-11

V.M.JAIN

body2004
JUDGMENT V.M. Jain, J. - This appeal has been filed by the accused appellant Lalit Kumar against the judgment and order dated 12.3.1992 passed by Special Judge, Hoshiarpur convicting the accused appellant under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months. 2. The case of the prosecution, in brief, is that 30.10.1990, Tirath Ram, PW had approached accused Lalit Kumar in his office at Hoshiarpur for getting the indent for issuance of Kerosene Oil passed for the month of November, 1990, whereupon the accused had told him that since the prices of Kerosene Oil had substantially increased, he should pay him Rs. 250/- for getting the quota for the month of November, 1990 released, but, since Tirath Ram pretended that he was not possessed of requisite amount, the accused had asked him to come on the next day. The prosecution allegations further are that Tirath Ram PW did not want to pay the said money as illegal gratification, whereupon he accompanied by Devinder Singh PW had gone to the office of Vigilance Bureau, Hoshiarpur on 31.10.1990 and had told Inspector Darshan Singh in this regard whereupon Inspector Darshan Singh recorded his statement Exhibit PD. Tirath Ram produced two currency notes of Rs. 100/- each and one of Rs. 50/- before Inspector Darshan Singh who applied Phenolphthalein Powder on those currency notes and after noting their numbers, he handed over the same to Tirath Ram vide handing over memo Exhibit PF/1 with a direction to hand over the tainted money to the accused on demand and after getting the recommendation for issuance of indent endorsed in the register, whereas Devinder Singh was instructed to hear the conversation between the accused and Tirath Ram and to give the necessary signal after the acceptance of bribe. He also demonstrated the use of Phenolphthalein Powder and prepared demonstration memo Exhibit PL in this regard. The statement Exhibit PD of Tirath Ram was sent to the Police Station by Inspector Darshan Singh vide his endorsement Exhibit PD/1 on the basis of which formal FIR Exhibit PF/2 was recorded in the Police Station. He also demonstrated the use of Phenolphthalein Powder and prepared demonstration memo Exhibit PL in this regard. The statement Exhibit PD of Tirath Ram was sent to the Police Station by Inspector Darshan Singh vide his endorsement Exhibit PD/1 on the basis of which formal FIR Exhibit PF/2 was recorded in the Police Station. Inspector Darshan Singh joined Karam Chand PW in the raiding party and thereafter the raiding party left for the office of the accused. On reaching near the office, Tirath Ram and Devinder Singh separated from the other members of the raiding party and they went to the office of the accused while the other members of the raiding party stayed near the Power House. As per the prosecution allegations, when Tirath Ram approached the accused, the accused enquired from him as to whether he had brought the money whereupon Tirath Ram replied in the affirmative and passed on the tainted notes to the accused who put the same inside the inner pocket of his pant and also made an entry in the stock register Exhibit P-7 whereupon Devinder Singh PW gave the necessary signal, whereupon the other members of the raiding party reached the office of the accused. It is further alleged that after disclosing his identity, Inspector Darshan Singh apprehended the accused from his arms and thereafter he prepared solution of water and sodium carbonate and the accused was asked to dip his hands in the said solution. When the accused dipped his hands, the colour of the contents turned pink and thereafter the hand wash was made into a sealed parcel and taken into possession vide recovery memo Exhibit PJ. Thereafter Inspector Darshan Singh searched the person of the accused and recovered currency notes Exhibits P-2 to P-4 from the inner pocket of his pant and the numbers of those currency notes tallied with the numbers recorded in the memo Exhibit PF/1 whereupon those currency notes were taken into possession vide recovery memo Exhibit PG. Another solution of water and sodium carbonate was prepared and the pocket of the pant of the accused was dipped therein and the colour of the solution turned pinkish and the pocket-wash was also made into a sealed parcel and taken into possession vide recovery memo Exhibit PH. Another solution of water and sodium carbonate was prepared and the pocket of the pant of the accused was dipped therein and the colour of the solution turned pinkish and the pocket-wash was also made into a sealed parcel and taken into possession vide recovery memo Exhibit PH. Stock register Exhibit P-7 containing the entries made by the accused recommending the issuance of 2430 litres of Kerosene Oil to Tirath Ram was also taken into possession vide recovery memo Exhibit PM, besides taking into possession indent Exhibit P-9 and depot holder register Exhibit PE vide recovery memo Exhibit PK. Rough site plan, Exhibit PP of the place of recovery was also prepared and sanction Exhibit PJ, to prosecute the accused was obtained. After completion of investigation, report under Section 173 Criminal Procedure Code was prepared and challan was submitted in the Court. 3. The accused was charged under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988. The prosecution produced evidence in support of its case. The statement of accused under Section 313 Criminal Procedure Code was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case. He stated that some bogus cards were detected by him from the depot of Tirath Ram and on the basis of his complaint, his quota of Kerosene Oil was reduced and he had a grudge with him on that count. He further stated that on the day of alleged occurrence, Tirath Ram PW had passed on currency notes Exhibits P-2 to P-4 to him on the pretext that the same be given to Shri Chanan Singh, A.F.S.O. and that at that time, Kishan Chand, Parminder Singh and Moti Ram were present. He further stated that he had not demanded or accepted any bribe money from Tirath Ram and that Devinder Singh PW was also not present at that time. He further stated that he was taken to the office of Vigilance Inspector, Hoshiarpur where all the formalities were completed and a false case was made against him at the instance of Tirath Ram. In his defence, he examined DW-1 Kishan chand, DW-2 Parvinder Singh and DW-3 Prithvi Raj. 4. He further stated that he was taken to the office of Vigilance Inspector, Hoshiarpur where all the formalities were completed and a false case was made against him at the instance of Tirath Ram. In his defence, he examined DW-1 Kishan chand, DW-2 Parvinder Singh and DW-3 Prithvi Raj. 4. After hearing both sides and perusing the records, the learned Special Judge convicted and sentenced the accused appellant as stated above vide judgment and order dated 12.3.1992. Aggrieved against the same, the accused appellant filed the present appeal in this Court. 5. I have heard learned counsel for the parties and have gone through the record carefully. 6. The learned counsel appearing for the accused appellant submitted before me that the accused appellant has been falsely implicated in this case on account of inimical relations of Tirath Ram with him on account of reduction of his quota of Kerosene Oil on the complaint made by the accused appellant for which his licence was also cancelled. It was further submitted that Tirath Ram had handed over the tainted money to the accused appellant for giving the same to Shri Chanan Singh, A.F.S.O. with whom he had dealings and the accused appellant was falsely implicated in this case. It was further submitted that the accused appellant was not competent to reduce or increase the quota of Kerosene Oil and as such there was no question of the accused appellant demanding any illegal gratification from Tirath Ram PW. Lastly, it was submitted that the charge framed in this case was defective. 7. On the other hand, the learned appearing for the State submitted before me that from the testimony of PW-5 Devinder Singh, PW-6 Karam Chand and PW-7 Tirath Ram, it was fully proved on the record that the accused had demanded illegal gratification from Tirath Ram and on his demand, Tirath Ram had given illegal gratification to him and the same was duly recovered from his possession. It was submitted that there was no question of false implication of the appellant on account of inimical relations. It was further submitted that the story put forth by the accused that Tirath Ram PW had given the said currency notes to him for payment to the A.F.S.O. was a false story and had rightly not been accepted by the trial Court. It was further submitted that the story put forth by the accused that Tirath Ram PW had given the said currency notes to him for payment to the A.F.S.O. was a false story and had rightly not been accepted by the trial Court. It was further submitted that the accused appellant being Sub Inspector of Food and Supplies Department was concerned with the supply of Kerosene Oil to the depot holders and as such he had the occasion to demand and accept illegal gratification from Tirath Ram PW. It was further submitted that there was no defect in the charge framed against the accused appellant and in any case if there was any defect the same would not be material in view of Section 215 Criminal Procedure Code It was also submitted that the recovery of tainted money of Rs. 250/- from the accused appellant is admitted by the accused himself and there is a presumption against him. Reliance has been placed on T. Shankar Prasad v. State of Andhra Pradesh, 2004(1) RCR(Crl.) 784 (SC). 8. After hearing the learned counsel the parties and perusing the record, I find no merit in the submissions made before me by the learned counsel for the accused appellant. 9. PW-7 Tirath Ram complainant categorically deposed about the manner in which the accused appellant had demanded illegal gratification from him and the manner in which he had paid tainted currency notes of Rs. 250/- to him in the presence of Devinder Singh PW. During his lengthy cross-examination, nothing could be brought out which could help the accused in this case. He categorically denied the suggestion that he had given the bribe money to the accused for passing it on to AFSO Shri Chanan Singh as he was not available in his office. The testimony of PW-7 Tirath Ram finds corroboration from the testimony of PW-5 Devinder Singh who was the shadow witness. This witness was also cross-examined at length but nothing useful to the accused could be brought out in his cross-examination as well. Nothing has come on the record to show as to why this witness would falsely implicate the accused in this case. Merely because he was known to Tirath Ram PW would not be sufficient to hold that he would join hands with Tirath Ram to falsely implicate the accused in this case. Nothing has come on the record to show as to why this witness would falsely implicate the accused in this case. Merely because he was known to Tirath Ram PW would not be sufficient to hold that he would join hands with Tirath Ram to falsely implicate the accused in this case. Furthermore, the testimony of both these witnesses further finds corroboration from the testimony of PW-6 Karam Chand who is an independent witness and has deposed about the raid and the recovery from the possession of the accused. The suggestion given to this witness on behalf of the accused that he had deposed falsely at the instance of Devinder Singh PW, being his friend, was specifically denied by him. 10. From the testimony of the aforesaid witnesses, in my opinion, it stands fully proved on the record that the accused had demanded illegal gratification of Rs. 250/- from Tirath Ram and in pursuance to the said demand, the said money was accepted by him which was, later on, recovered from his possession. The factum about the recovery of tainted money of Rs. 250/- from his possession, in fact, stands admitted by the accused in his statement under Section 313 Criminal Procedure Code when he stated that on the alleged day of occurrence, Tirath Ram PW had passed on the currency notes Exhibits P-2 to P-4 to him on the pretext that the same be given Shri Chanan Singh, AFSO. In my opinion, from the evidence led by the prosecution, the charge against the accused stands fully proved on the record. In 2004(1) RCR page 784 (supra), it was held by the Honble Supreme Court that when money was recovered from the pocket of accused, a presumption under Section 7 of the Act is obligatory. It is a presumption of law and casts an obligation on Court to operate it in every case brought in Section 7. It was further held that the presumption is a rebuttable presumption and it is by proof and not be explanation which may seem to be plausible. In the present case, as referred to above, the recovery of tainted money from the pocket of the pant of the accused not only stands proved from the evidence led by the prosecution but also from the admission made by the accused in his statement under Section 313 Criminal Procedure Code 11. In the present case, as referred to above, the recovery of tainted money from the pocket of the pant of the accused not only stands proved from the evidence led by the prosecution but also from the admission made by the accused in his statement under Section 313 Criminal Procedure Code 11. The stand taken by the accused appellant that this money was handed over to him by Tirath Ram PW for handing it over to Shri Chanan Singh, AFSO, in my opinion, cannot be accepted. Nothing has come on the record to show as to in which capacity the accused appellant had accepted the said money from Tirath Ram PW for handing it over to Shri Chanan Singh, AFSO. This plea taken by the accused appears to be an after-thought. So far as the testimony of DW-1 Shri Kishan Chand, DW-2 Parvinder Singh and DW-3 Prithivi Raj is concerned, in my opinion, the same is neither here nor there and would not be sufficient to hold that Tirath Ram PW had made the payment to the accused appellant for handing over to Shri Chanan Singh, AFSO. DW-1 Kishan Chand is a depot holder and is, thus, under the influence of the accused appellant. His bald testimony that he was present in the office of the accused when Tirath Ram PW gave Rs. 250/- to the accused for payment to the AFSO as bribe money, in my opinion, cannot be accepted. As referred to above, he is a depot holder. According to him, Tirath Ram PW was having friendly relations with the accused. If that be so, there was absolutely no occasion for Tirath Ram to have falsely implicated the accused in this case. Nothing has come on the record to show that DW-1 Kishan Chand had approached any senior officer about the false involvement of the accused in the present case. DW-2 Parvinder Singh is a colleague of the accused appellant. Being himself a Sub Inspector in the Food & Supplies Department, the statement made by him, in my opinion, also cannot be accepted. If the entire transaction had taken place in his presence, he should have approached the higher authorities about the false implication of the accused. However, nothing has come on the record to show that any such steps were taken by him in this regard. If the entire transaction had taken place in his presence, he should have approached the higher authorities about the false implication of the accused. However, nothing has come on the record to show that any such steps were taken by him in this regard. So far as DW-3 Prithvi Raj, Inspector, Food & Supplies is concerned, he has only deposed that in July, 1990, the accused had detected some bogus ration cards from the depot of Tirath Ram PW and on that count, his quota of Kerosene Oil was reduced. In his cross-examination, he admitted that the accused was his junior. In my opinion, even if Tirath Ram PW had a grievance against the accused, still that would not be enough to throw away the case of the prosecution when enough material has come on the record to show that the accused appellant had demanded money from Tirath Ram by way of illegal gratification and accepted the same from him. 12. Nothing has come on the record to show that the accused appellant was in no way connected with the supply of Kerosene Oil to Tirath Ram PW by issuing indents etc. In the absence thereof, it cannot be said that there was no occasion for the accused appellant to have demanded money from Tirath Ram. Exhibit P-7 is the stock register of Tirath Ram PW which contains entry made by accused Lalit Kumar recommending the issuance of 2430 litres of Kerosene Oil and the said register was taken into possession by Inspector Darshan Singh vide recovery memo Exhibit PM. Thus, it could not be said that Lalit Kumar appellant had no concern with the issuance of Kerosene Oil to the depot of Tirath Ram. PW. 13. So far as alleged defect in the charge is concerned, it is no doubt true that on 29.8.1991, the accused was charged under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 for having contravened the provisions of Section 13(1)(d) of the said Act for demanding and accepting Rs. 250/- from Tirath Ram as illegal gratification for checking and recommending the quota of Kerosene Oil for his depot for the month of February, 1990 (instead of November, 1990). 250/- from Tirath Ram as illegal gratification for checking and recommending the quota of Kerosene Oil for his depot for the month of February, 1990 (instead of November, 1990). This defect in the charge framed against the accused, in my opinion, would be of no consequence since nothing has come on the record to show that the accused appellant was in any way prejudiced because of this defect in the charge. Under Section 215 Criminal Procedure Code it has been provided that no error, in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was, in fact, misled by such error or omission and it has occasioned a failure of justice. In the present case, as referred to above, nothing has come on the record to show that error in the framing of charge by mentioning the month as February in place of November has occasioned a failure of justice nor anything has come on the record to show that because of the said error, the accused was in any way misled. The case of the prosecution throughout was that the accused had demanded illegal gratification of Rs. 250/- from Tirath Ram PW on 30.10.1990 and that on 31.11.1990 again the demand was made. Thereupon said amount of Rs. 250/- was paid to him. There would be no question of demand and payment of illegal gratification in the month of February 1990. In my opinion, the accusatory appellant cannot take any benefit of the aforesaid error in the charge especially when the accused appellant was not prejudiced and this error has not occasioned a failure of justice. 14. In view of my detailed discussion above, in my opinion, the learned Special Judge had rightly held the accused guilty in this case and no fault can be found with the same. Accordingly, I uphold the conviction of the accused appellant for the offence under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988. 15. Coming to the question of sentence, the learned counsel appearing for the accused appellant has submitted before me that the sentence awarded to the accused appellant is on the higher side. Accordingly, I uphold the conviction of the accused appellant for the offence under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988. 15. Coming to the question of sentence, the learned counsel appearing for the accused appellant has submitted before me that the sentence awarded to the accused appellant is on the higher side. After hearing the learned counsel for the parties and perusing the record and keeping in view the fact that almost 14 years have passed since the present occurrence had taken place, in my opinion, the ends of justice would be fully met in case the substantive sentence awarded to the accused appellant is reduced from rigorous imprisonment for two years to rigorous imprisonment for one year. Accordingly, while upholding the conviction of the accused appellant, the substantive sentence awarded to the accused appellant is reduced from two years to one year rigorous imprisonment. However, the sentence of fine is upheld. Except with the modification on the question of sentence, the present appeal fails and is hereby dismissed. Appeal dismissed.