Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 1157 (PNJ)

Mathura Dass Gupta v. State Of Haryana

2005-11-09

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. This judgment shall dispose of Crl. Appeal No. 4-SB of 1996 and Crl. Appeal No. 97-SBA of 1997. Criminal Appeal No. 4-SB of 1996 has been directed by Mathura Dass Gupta against the judgment of conviction dated 9.12.1995 and the order of sentence dated 11.12.1995, vide which he has been convicted and sentenced to undergo rigorous imprisonment for 1-1/2 years for the offence under Section 7 of the Prevention of Corruption Act, 1988, (hereinafter referred as `the Act) in case FIR No. 497 dated 27.12.1993 registered at Police Station Mahendergarh under Section 7 of the Act, whereas Crl. Appeal No. 97-SBA of 1997 has been directed by the State of Haryana against the judgment dated 1995, vide which accused Ami Lal has been acquitted in the aforesaid case. 2. As per the prosecution version, accused Mathura Dass Gupta and Ami Lal were working as Assistant Foreman and Lineman in the office of Haryana State Electricity Board, Mahendergarh. On 27.12.1993, one Sheel Singh son of Prabhu Dayal, a resident of village Riwasa, (PW-1) made an application (Ex. PA) before Shri V. Raja Shekhar, IAS, Sub-Divisional Magistrate, Mahendergarh (PW-3) alleging therein that he had a tubewell in village Khatod and for the last three years, he has been contacting employees of the Electricity Board, Mahendergarh, for installing a transformer as the existing transformer was over loaded, but they did not instal the same. It was also alleged that a day before making the application (Ex. PA), the complainant went to the office where accused Mathura Dass Gupta demanded a sum of Rs. 1,000/- as bribe for doing the needful. Accused Mathura Dass Gupta had also told the complainant that if he was not available then the complainant should pay the amount to accused Ami Lal. On the said application, a raiding party was constituted by the SDM consisting himself, DSP Sat Parkash (PW-4), ASI Bharat Singh (PW-2) and a trap was laid. The currency notes of the denomination of Rs. 100/- were signed by the SDM and the complaintant and the shadow witness Bharat Singh were asked to go to the accused for making payment of bribe. Sheel Singh and Bharat Singh went inside the office of the accused whereas the other members of the raiding party i.e. SDM and DSP remained standing outside the office. 100/- were signed by the SDM and the complaintant and the shadow witness Bharat Singh were asked to go to the accused for making payment of bribe. Sheel Singh and Bharat Singh went inside the office of the accused whereas the other members of the raiding party i.e. SDM and DSP remained standing outside the office. As per the prosecution, Sheel Singh and Bharat Singh went to Mathura Dass Gupta accused in the office, who enquired whether Sheel Singh has brought the money. When he replied in affirmative, Mathura Dass Gupta accused came out of his office and told Sheel Singh to hand over the amount of bribe to accused Ami Lal, who was also present there. The complainant Sheel Singh then handed over the amount of Rs. 1,000/- to Ami Lal in presence of ASI Bharat Singh. Thereafter, ASI Bharat Singh gave signal to the raiding party, whereupon DSP and SDM came at the spot and caught hold both the accused. DSP Sat Parkash searched the person of Ami Lal accused and recovered currency notes of Rs. 10,000/- from his pocket. Thereafter, on the complaint made by the SDM, the aforesaid FIR was registered. After completion of investigation, challan was filed against both the accused. 3. In order to prove the charge, the prosecution examined PW-1 Sheel Singh, on whose complaint trap was laid, PW-2 SI Bharat Singh, the shadow witness PW-3 V. Raja Shekhar, IAS, SDM, Mahendergarh before whom the complaint was made regarding demand of bribe and who led the raiding party. PW-4 DSP Sat Parkash, who was one of the members of the raiding party and who is alleged to have recovered the amount of bribe from accused Ami Lal and PW-5 Prem Kumar, Assistant Lineman, who was working as SDC in the office of the SDO, HSEB, Mahendergarh and has proved the original application moved by one Sunda Ram on 20.12.1993 for installing the new transformer. 4. In his statement under Section 313 Cr.P.C. accused Mathura Dass Gupta has pleaded that that his house was situated near the house of V. Raja Shekhar SDM and about two days before the occurrence, his buffalo strayed into the house of the SDM and had damaged his kitchen garden, as a result of which an altercation had taken place between them because of which the SDM has falsely implicated him in his case. However, in defence, no evidence was led. Accused Ami Lal, in his statement under Section 313 Cr.P.C. pleaded innocence. 5. After considering the evidence led by the prosecution, the trial Court vide the impugned judgment convicted accused Mathura Dass Gupta under Section 7 of Act while holding that the prosecution has fully proved that he had demanded a bribe of Rs. 1,000/- from Sheel Singh for installing transformer and that the said amount was handed over to accused Ami Lal at his instance from whom the same was recovered. As far as accused Ami Lal is concerned, it was held that there is nothing on file to hold that he had made any demand of bribe from Sheel Singh. It was further held that accused Ami Lal was standing in front of the office of SDO and at the time, at the instance of Mathura Dass Gupta, the amount was handed over to him by Sheel Singh and it cannot be presumed that Ami Lal was aware of the fact that the said amount was being paid as bribe to him or that he was also a party to the transaction. Against this judgment, the aforesaid two appeals have been filed. 6. Mr. N.S. Shekhawat, learned counsel for appellant Mathura Dass Gupta submits that there was no occasion for accused Mathura Dass Gupta to demand the alleged bribe of Rs. 1,000/- from Sheel Singh as he was neither the resident of Village Khatod nor was owning any tubewell in that village. He was not even consumer of the Electricity Department. Further, he did not submit application in the office of Haryana State Electricity Board, Mahendergarh for replacing the transformer from his tubewell and no such application was marked to accused Mathura Dass Gupta for doing the said job. Even no such application has been proved by the prosecution. Learned counsel submits that in this regard, the prosecution has proved on record one application dated 20.12.1983 Ex. PG-6, which was allegedly filed by one Sunda Ram for change of transformer but has miserably failed to connect this application with accused Mathura Dass Gupta and further demanding the alleged amount of bribe by him from Sheel Singh on account of completion of the said job. 7. PG-6, which was allegedly filed by one Sunda Ram for change of transformer but has miserably failed to connect this application with accused Mathura Dass Gupta and further demanding the alleged amount of bribe by him from Sheel Singh on account of completion of the said job. 7. Secondly, learned counsel for appellant Mathura Dass Gupta submits that in this case the amount of alleged bribe was not paid to accused Mathura Dass Gupta by Sheel Singh. As per the prosecution version, the said amount was paid by Sheel Singh to accused Ami Lal on the asking of accused Mathura Dass Gupta in the presence of shadow witness Bharat Singh. Learned counsel submits that in this case except PW-1 Sheel Singh no other witness has stated that the alleged amount was paid to accused Ami Lal on the asking of accused Mathura Dass Gupta and the amount was paid by Sheel Singh to Ami Lal. Learned counsel contends that there are material contradictions in the statement of PW-1 Sheel Singh and PW-2 Bharat Singh regarding the payment of the alleged amount to Ami Lal as well as regarding the fact that the said amount was paid to Ami Lal on the asking of Mathura Dass Gupta. Learned counsel submits that inspite of the availability of the independent witness, the prosecution has not associated any independent witness to prove the payment of the bribe amount as well as the alleged recovery. Learned counsel for the appellant submits that there are major contractions in the statements of the prosecution witnesses regarding the pre-crime conduct, meeting of the officials, mode of the conveyance in which the raiding party went, the manner in which search and raid was conducted and the manner in which the alleged amount was recovered. Learned counsel further submits that these contradictions go to the root of the matter and create doubt in the prosecution version. While concluding his arguments, learned counsel submits that the possibility of false implication of accused Mathura Dass Gupta, as pleaded by him in his defence, cannot be ruled out, therefore, his conviction is not sustainable. 8. Mr. Partap Singh, Senior Deputy Advocate General, Haryana, submits that in this case the prosecution has proved guilt against both the accused. The demand of the bribe has been proved by PW-1 Sheel Singh. 8. Mr. Partap Singh, Senior Deputy Advocate General, Haryana, submits that in this case the prosecution has proved guilt against both the accused. The demand of the bribe has been proved by PW-1 Sheel Singh. In his complaint made before SDM, he has stated that for doing the job of installing transformer, accused Mathura Dass Gupta demanded bribe of Rs. 1,000/- and he said that this amount be paid either to him or to accused Ami Lal. It has been proved on record that the amount was paid to Ami Lal on the asking of Mathura Dass Gupta and the recovery of the currency notes has also been proved. Learned State counsel submits that the minor contradictions here and there cannot be given much weightage, particularly when on the spot, the bribe was paid to accused Ami Lal, which was subsequently recovered by the raiding party. Learned counsel further submits that even though the application submitted by Sheel Singh in the office of HSEB for installation of transformer has not been proved yet another application moved by one Sunda Ram who was a relative of Sheel Singh has been duly proved and that document proves the purpose for demanding the bribe. Therefore, there is no infirmity in the prosecution case and both the accused are liable to be convicted for the alleged offence. Learned counsel submits that the trial Court has committed grave illegality while acquitting accused Ami Lal on the ground that he was not aware of the fact that the said amount was being paid as bribe to him or that he was also a party to the transaction, therefore, the appeal filed by the State of Haryana should be allowed. 9. I have heard the arguments of learned counsel for the parties and have gone through the record. 10. In bribery cases, the prosecution evidence should be clear, specific with regard to the important ingredients of the offence i.e. demand of bribe, acceptance thereof and recovery of the tainted money from the possession of the accused. In order to appreciate the submissions made by learned counsel for the parties, I feel it necessary to look into the complaint as well as the evidence led before the Court by the prosecution. 11. In order to appreciate the submissions made by learned counsel for the parties, I feel it necessary to look into the complaint as well as the evidence led before the Court by the prosecution. 11. In the case, PW-1 Sheel Singh who is resident of village Riwasa has stated that on 26.12.1993, he moved an application in the office of XEN, HSEB, Mahendergarh of changing transformer, which supplies power to his tubewell in village Khatod and the same was over loaded. That application was marked by XEN to the SDO, HSEB, Mahendergarh and the SDO called accused Mathura Dass Gupta in his room, gave the said application to him and asked him to replace the transformer. It has been further stated by Sheel Singh that when he came out of the room of the SDO, Mathura Dass Gupta made a demand of Rs. 1,000/- for replacing the transformer. He also asked him to take him to his tubewell. Sheel Singh took Mathura Dass Gupta there, where he demanded Rs. 3,000/- for replacing the transformer, but Sheel Singh agreed to pay him only Rs. 1,000/-. He told him to pay Rs. 1,000/- in advance and the balance amount of Rs. 2,000/- will be paid after the change of the transformer. It is further stated by this witness that on 27.12.1993, he made an application Ex. PA to the SDM, Mahendergarh complaining about the said demand of bribe. In the said application he has not stated that he made an application to XEN on 26.12.1993 for change of transformer and the said application was marked to SDO, HSEB for the said purpose, who further marked the same to Mathura Dass Gupta and he demanded a bribe of Rs. 3,000/- and was taken to his village. In addition to the said contradiction the prosecution case has been demolished by PW-5 Prem Kumar, Assistant Lineman, working in the office of SDO, HSEB, Mahendergarh. The said witness, in cross-examination, has stated that PW-1 Sheel Singh is resident of village Riwasa and is not a consumer of the Electricity Department. He has proved the application dated 20.12.1993 moved by Sunda Ram of Village Khatod, which was marked by SDO to Mathura Dass Gupta accused for checking the site. This document was taken into possession by the police from him vide memo Ex. PH. He has proved the application dated 20.12.1993 moved by Sunda Ram of Village Khatod, which was marked by SDO to Mathura Dass Gupta accused for checking the site. This document was taken into possession by the police from him vide memo Ex. PH. This witness has stated that estimate on the said document was not prepared by Mathura Dass accused. He has further stated that on the application of Sunda Ram for changing the transformer, the SDO had issued the service job order in the name of Jeetu Singh JE and after his transfer that work was entrusted to B.S. Rathi, A.F.M. but Mathura Dass Gupta accused had no concern with the change of transformer of Sunda Ram. Regarding the tubewell connection, learned Special Judge has observed that there is nothing one the file that there was any tubewell connection in the name of Sheel Singh. However, explanation regarding this matter has been furnished by Sat Parkash in cross-examination, who has stated that the tubewell connection was to be obtained for the tubewell of Sunda Ram who is uncle of Sheel Singh complainant and this fact had come to his knowledge during the investigation of this case. This observation of the learned trial Court is contrary to the evidence available on the record. There is nothing in the statement of PW-4 that there no material before the prosecution to prove that Sheel Singh was the uncle of Sunda Ram. 12. The aforesaid evidence, in my opinion, clearly establish that the alleged story of demand of bribe by accused Mathura Dass Gupta given by PW Sheel Singh on account of change of his transformer at village Khatod seems to be totally concocted. Sheel Singh is resident of Village Riwasa having no land or tubewell in village Khatod. He was not even a consumer of the HSEB department. He was having no relation with Sunda Ram. In these circumstances he had nothing to do with the application filed by Sunda Ram. The alleged application filed by Sheel Singh before XEN for change of transformer has not been proved at all. Thus, in my opinion, there was no occasion for accused Mathura Dass Gupta to demand the alleged bribe and there was no reason with Sheel Singh to agree to pay the said amount. The alleged application filed by Sheel Singh before XEN for change of transformer has not been proved at all. Thus, in my opinion, there was no occasion for accused Mathura Dass Gupta to demand the alleged bribe and there was no reason with Sheel Singh to agree to pay the said amount. It is well settled that in case of bribe the element of demand of bribe is very material and if the said demand is not proved conviction of the accused cannot be sustained. This is one aspect of the matter. 13. Now the question for consideration is whether the amount of Rs. 1,000/- was paid by Sheel Singh to accused Ami Lal on the asking of accused Mathura Dass as has been alleged. In his regard. PW-1 Sheel Singh has stated that he along with raiding party went in jeep of the SDM towards the office of Mathura Dass Gupta. The jeep was stopped at a distance of 300 yards. He and ASI Bharat Singh went to Mathura Dass Gupta accused in his office, who enquired from him whether he had brought the amount to which he replied in affirmative. Mathura Dass Gupta then came outside his office. When PW Sheel Singh took out Rs. 1,000/- from his pocket and asked Mathura Dass to receive, he told Sheel Singh to hand over the amount to Ami Lal, who was also present there. He then handed over the said amount to Ami Lal in presence of Bharat Singh. In cross- examination, PW-1 Sheel Singh has stated that he had paid Rs. 1,000/- to Ami Lal accused on the railway road in front of the gate of the office of the accused. He has further stated that Ami Lal was not present in office, when Mathura Dass had come with him out of his office room. Ami Lal was present on the road from where he was called by Mathura Dass. He had called him from there by name. The place where the alleged payment was made was only 10 yards away from the office room of accused Mathura Dass Gupta. PW-2 Bharat Singh in this regard has stated that Sheel Singh went to the room of Mathura Dass Gupta and then came out of the room along with him. He further stated that he stayed at some distance. He had not heard any conversation between them. PW-2 Bharat Singh in this regard has stated that Sheel Singh went to the room of Mathura Dass Gupta and then came out of the room along with him. He further stated that he stayed at some distance. He had not heard any conversation between them. Sheel Singh, Mathura Dass Gupta and Ami Lal were standing near the gate of the office. He had not seen Sheel Singh handing over currency notes to Ami Lal. He has further stated that Sheel Singh had told the raiding party that he had paid the alleged amount of bribe to Ami Lal on the asking of accused Mathura Dass Gupta. This statement of Bharat Singh further creates serious doubt in the prosecution version. The prosecution, in my opinion, has miserably failed to prove the payment of the alleged bribe amount to accused Ami Lal on the asking of accused Mathura Dass Gupta. PW-3 V. Raja Sekhar and PW-4 DSP Sat Parkash, in this regard, have stated that they have not seen the payment of alleged amount to Ami Lal by Sheel Singh as they were standing at a distance. Except the contradictory statement of Sheel Singh, there is no evidence on the record, which proved that the alleged amount was paid to Ami Lal and the same was paid on the asking of accused Mathura Dass Gupta. Though PW-3 and PW-4 have proved the recovery of Rs. 1,000/- from Ami Lal but that recovery itself is of no consequence, until the other two elements i.e. demand of bribe and payment of the same to accused is proved. 14. There are other material contradictions in the prosecution evidence which further create doubt in the prosecution case. For example as per the statement of PW-1 the complainant had gone to the house of SDM on 27.12.1993 at 9 AM and made the alleged application where the DSP Sat Pal and ASI Bharat Singh also came, from where they started for conducting raid, whereas PW-2 Bharat Singh and PW-4 DSP Sat Pal have stated that they had gone to the office of SDM, Mahendergarh from where the raid was started. PW-1 Sheel Singh stated that the amount of Rs. 1,000/- in the shape of 10 currency notes were given to the SDM before arrival of DSP and ASI, whereas PW-4 DSP stated that the amount was given after his arrival in the SDM office. PW-1 Sheel Singh stated that the amount of Rs. 1,000/- in the shape of 10 currency notes were given to the SDM before arrival of DSP and ASI, whereas PW-4 DSP stated that the amount was given after his arrival in the SDM office. PW-1 Sheel Singh stated that he along with SDM, DSP and ASI went in the jeep of SDM for conducting the raid whereas PW-4 DSP Sat Pal stated that he and SDM only went in jeep and he did not know how complainant Sheel Singh and ASI went to the office of accused. After going through the contradictory evidence of the prosecution as discussed above, the possibility of false implication of the accused in this case cannot be ruled out. Besides this, it has also come on record that the raiding party remained for about 5 hours in the office of the Electricity department and during that period, they did not take into possession the application alleged to have been submitted by Sheel Singh which was allegedly marked by XEN to Mathura Dass Gupta. The said application was taken into possession after 25 days. The application was not made by complainant Sheel Singh, but it was alleged to have been made by Sunda Ram who has no relation with Sheel Singh. This fact also creates doubt in the prosecution version. 15. In view of the aforesaid discussion Crl. Appeal No. 4-SB of 1996 is allowed and Crl. Appeal No. 97-SBA of 1997 is dismissed. Accordingly, the conviction and sentence of appellant Mathura Dass Gupta is set aside and he is acquitted of the charge, whereas the acquittal of respondent Ami Lal is upheld.