Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 989 (PNJ)

Pargat Singh v. State Of Punjab

2006-03-08

BALDEV SINGH

body2006
Judgment Baldev Singh, J. 1. Pargat Singh son of Hari Singh, resident of village Galoli, Police Station Patran, District Patiala has filed this appeal against the impugned judgment and sentence order, both dated 19.2.2001 passed by Shri Birinder Singh, the then Special Judge, Patiala, in case FIR No. 35 dated 5.6.1996 under Sections 13(2) and 7 of the Prevention of Corruption Act, 1988. He was sentenced to undergo rigorous imprisonment for one year and to pay Rs. 2000/- as fine and in default of payment of fine to undergo further RI for one month under Section 7 and to undergo rigorous imprisonment for two years and to pay Rs. 3000/- as fine and in default of payment of fine to undergo further RI for two months under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred as the Act). Both the sentences were ordered to run concurrently. The amount of bribe of Rs. 1000/- was ordered to be retuned to the complainant. 2. The facts of the prosecution case are that Pargat Singh - appellant at the relevant time was posted at Samana in the office of House Federation as Secretary and he was dealing with the loan cases pertaining to house loans with the public. PW6 (Kulwant Singh - complainant) had raised a loan of Rs. 1,35,000/- from House Federation for the construction of his house. He was released on 8.5.1996 the first instalment of loan of Rs. 66,300/-, which was utilised by him for the part construction of his house. He went in the office of House Federation at Samana to take the second instalment on 4.6.1996. The appellant had prepared the file of Kulwant Singh - complainant. He told Kulwant Singh - complainant that instalment would be paid to him if he paid him Rs. 1500/-. He demanded Rs. 1500/- as illegal gratification from Kulwant Singh - complainant for forwarding his file. He (complainant) agreed to pay Rs. 1000/- to the appellant. In fact, Kulwant Singh - complainant did not intend to pay any illegal gratification to the appellant and made false promise. He approached the Vigilance officials on 5.6.1996. PW8 Pritpal Singh Thind, the then DSP, Vigilance was present in his office at Patiala. Kulwant Singh - complainant accompanied by Jaswant Singh went to his office and apprised him of the demand of Rs. 1000/- as illegal gratification of the appellant. He approached the Vigilance officials on 5.6.1996. PW8 Pritpal Singh Thind, the then DSP, Vigilance was present in his office at Patiala. Kulwant Singh - complainant accompanied by Jaswant Singh went to his office and apprised him of the demand of Rs. 1000/- as illegal gratification of the appellant. Pritpal Singh Thind, DSP recorded the statement of Kulwant Singh - complainant, which is Ex.PK. It was read over to him. He admitted it to be correct and signed it. Thereafter, Kulwant Singh - complainant produced currency notes worth Rs. 1000/- before Pritpal Singh Thind, the then DSP, Vigilance. Five currency notes were of the denomination of Rs. 100/- and ten currency notes were of the denomination of Rs. 50/-. Phenolphthalein powder was applied to the currency notes and after ensuring that Kulwant Singh - complainant had no other currency note with him, these were entrusted to him vide memo Ex.PB. Numbers of the currency notes were recorded in this memo, which was attested by Kulwant Singh - complainant and Jaswant Singh - shadow witness. Demonstration was given before PWs Kulwant Singh and Jaswant Singh. Some water was poured into a glass and sodium carbonate was put in it. The colour did not change. Thereafter, some phenolphthalein power was added in the water in the glass with a slip (piece of paper). Colour of the water turned pinkish. The water was thrown away and demonstration memo Ex.PM was prepared. Pritpal Singh Thind, DSP Vigilance made his endorsement Ex.PK/1 under the statement Ex.PK and sent the same to the Police Station Vigilance Bureau, Patiala and got this case registered. Ex.PK/2 is the copy of the FIR. Darbari Lal Inspector had scribed the FIR. Thereafter, Pritpal Singh Thind DSP alongwith Karam Chand ASI, Constable Ranjit Singh and other police officials as also Kulwant Singh - complainant and Jaswant Singh - shadow witness left for Samana. PW Ashok Kumar Registration Clerk was joined in the raiding party. Instructions were given to Kulwant Singh - complainant to accompany Jaswant Singh - shadow witness. Jaswant Singh - shadow witness was given instructions to hear the conversation between the appellant and Kulwant Singh - complainant and to give signal to the raiding party after the appellant had accepted the tainted currency notes. They all reached Gandhi Ground, Samana, wherein, the office of House Federation was located. Jaswant Singh - shadow witness was given instructions to hear the conversation between the appellant and Kulwant Singh - complainant and to give signal to the raiding party after the appellant had accepted the tainted currency notes. They all reached Gandhi Ground, Samana, wherein, the office of House Federation was located. As per instructions, PWs Kulwant Singh and Jaswant Singh went upstairs in the office of House Federation. Kulwant Singh - complainant approached the appellant. He demanded illegal gratification from the complainant and took him to a tea-shop near the office. Kulwant Singh - complainant handed over the tainted currency notes to the appellant. He counted them and put them in his pocket. PW Jaswant Singh - shadow witness saw the transaction. He gave signal to the raiding party. Raid was them conducted and the appellant was apprehended by Pritpal Singh Thind DSP, Vigilance, who disclosed his identity to the appellant. A glass of water was procured and sodium carbonate was put in it. Both hands of the appellant were got dipped into the said glass. The colour of the water turned pinkish. The hand-wash was poured into a nip, which the DSP sealed with his seal. It was taken into possession vide recovery memo Ex.PD, which was attested by PWs Ashok Kumar, Kulwant Singh and Jaswant Singh. Thereafter, Pritpal Singh Thind DSP conducted search of the appellant. Currency notes worth Rs. 1000/- were recovered from the internal front pocket of the pant of the appellant. The numbers of the recovered currency notes were compared with the numbers of the currency notes written in the memo Ex.PB. Those tallied. The currency notes were taken into possession vide recovery memo Ex.PC. Further search of the appellant was conducted. An amount of Rs. 25,000/- was recovered from the right side pocket of his pant. A Titan watch and one identity card were also recovered from him. These articles were taken into possession vide recovery memo Ex.PL. A trouser was arranged for the appellant and his pant was taken off. A glass of water was procured, in which sodium carbonate was added. The pocket of the pant of the appellant was dipped in the said water. The colour of the water turned pink. This water was put in a nip and the same was sealed by the DSP with his seal. The nip was taken into possession vide seizure memo Ex.PW. The pocket of the pant of the appellant was dipped in the said water. The colour of the water turned pink. This water was put in a nip and the same was sealed by the DSP with his seal. The nip was taken into possession vide seizure memo Ex.PW. Site plan Ex.PO was prepared. The appellant produced the documents pertaining to the loan case of Kulwant Singh - complainant. These were taken into possession vide recovery memo Ex.PN. The appellant was brought to the police station, where he was confined. The case property was deposited with Head Constable Gucharan Singh. 3. During the course of investigation, the two nips containing hand-wash and pant-wash were sent to the Forensic Science Laboratory, Punjab, Chandigarh. On analysis, these were found mixture of sodium carbonate and phenolphthalein powder. Report of the Forensic Science Laboratory is Ex.PQ. 4. After obtaining sanction order, Ex.PH, from Shri M.P. Pandav, the then Managing Director of the House Federation, who was the competent Authority to prosecute the appellant, challan was put in the court for his trial. 5. Charge was framed against the appellant for the offence punishable under Sections 7 and 13(2) of the Act. He did not plead guilty to the charge and claimed trial. 6. The prosecution at the trial examined eight witnesses, namely PW1 Jaswant Singh - shadow witness, PW2 Constable Gora Lal, PW3 Shashi Singari Senior Assistant, PW4 Gurmeet Singh Superintendent of the office of House Federation, PW5 Head Constable Gurcharan Singh, PW6 Kulwant Singh - complainant, PW7 Ashok Kumar Registration Clerk and PW8 Pritpal Singh Thind DSP, Vigilance. 7. Ex.PA is the statement of PW Jaswant Singh recorded under Section 161 of the Code of Criminal Procedure, with which he was confronted. Ex.PB is the memo, vide which the currency notes were entrusted to Kulwant Singh - complainant. Ex.PC is the recovery memo of the currency notes. Ex.PD is the memo, vide which nip containing hand-wash of the complainant was taken into possession. Ex.PE is the memo vide which nip containing pant-wash was taken into possession. Ex.PF is the affidavit of Goral Lal. Ex.PG is the information given to the Vigilance office regarding the posting of the appellant. Ex.PG/1 is the copy of the appointment order of the appellant. Ex.PG/2 is the entry of his service record. Ex.PH is the sanction order. Ex.PJ is the affidavit of Head Constable Gurcharan Singh. Ex.PF is the affidavit of Goral Lal. Ex.PG is the information given to the Vigilance office regarding the posting of the appellant. Ex.PG/1 is the copy of the appointment order of the appellant. Ex.PG/2 is the entry of his service record. Ex.PH is the sanction order. Ex.PJ is the affidavit of Head Constable Gurcharan Singh. Ex.PK is the statement of the complainant, which PW8 Pritpal Singh Thind DSP had recorded. Ex.PK/1 is the endorsement made by the DSP, Vigilance. Ex.PK/2 is the copy of the FIR. Ex.PL is the memo of personal search of the appellant. Ex.PM is the demonstration memo. Ex.PN is the recovery memo, vide which the loan case file containing 37 pages was taken into possession and Ex.PO is the site plan. Ex.PQ is the report of the Forensic Science Laboratory. This is the entire prosecution evidence. 8. Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure on the conclusion of the persecution evidence. He admitted that Kulwant Singh - complainant had raised loan from the House Federation for the construction of his house and he had already received one instalment. He denied that he demanded Rs. 1500/- as illegal gratification from Kulwant Singh - complainant for forwarding his file for the release of second instalment and ultimately he reduced his demand to Rs. 1000/-. He further denied that bribe money of Rs. 1000/- was paid to him and the same was later on recovered by Pritpal Singh Thind DSP, Vigilance in the presence of Kulwant Singh - complainant, Jaswant Singh - shadow witness and Ashok Kumar - Registration Clerk. The appellant stated that he was innocent and was falsely implicated in the case and in fact the complainant had not produced the record of utilisation of the first instalment of loan plus 25% expenditure from his own pocket, as per rules. Without Utilisation Certificate, second instalment could not be issued to the complainant. He had spent the first instalment of loan for discharging his loan of a tractor to a bank and had not utilised the loan for the purpose for which he had taken it. 9. Without Utilisation Certificate, second instalment could not be issued to the complainant. He had spent the first instalment of loan for discharging his loan of a tractor to a bank and had not utilised the loan for the purpose for which he had taken it. 9. The appellant had examined DW1 Surjit Singh, an employee of House Federation, who deposed that a person who takes loan has to spend 25% of the amount from his own pocket after the release of first instalment and he has to submit a Utilisation Certificate to the House Federation, before the second instalment is issued to him. He produced proforma, certified copy of which is Ex.DW1/A. 10. Arguments of Mr. Pritam Saini, Ld. Counsel appearing for the appellant and Mr. Pawan Sharda, Assistant Advocate General appearing for the State of Punjab were heard and the evidence was scrutinised with their help. 11. The Ld. Counsel for the appellant first of all argued that the shadow witness in this case has not supported the version of the prosecution. As such, there is no corroboration to the testimony of the complainant with regard to the demand of illegal gratification allegedly made by the appellant from the complainant. PW1 Jaswant Singh is the shadow witness. According to PW6 Kulwant Singh - complainant, before approaching to the Vigilance officials, he had talked to PW1 Jaswant Singh son of Aamir Singh of his village regarding the demand of Rs. 1000/- made by Pargat Singh - appellant. PW1 Jaswant Singh had then accompanied him to the Vigilance Office, Patiala. Further his statement is that instructions were given to PW Jaswant Singh that the moment he would hand over the tainted money to the appellant, he (PW Jaswant Singh) would give an indication to the police officials. Further that he (the complainant) handed over the money to the appellant, who counted the currency notes and put them in his pocket. PW Jaswant Singh gave an indication to the police officials, who arrived and apprehended the appellant. Further that the tainted currency notes of Rs. 1000/- were recovered from the search of the appellant. From the statement of PW6 Kulwant Singh, all the necessary ingredients i.e. demand, acceptance and recovery are proved. However, PW1 Jaswant Singh shadow witness does not support the prosecution version. His deposition runs as under :- "About 7/8 months ago I came to office of Regional Department Patiala. 1000/- were recovered from the search of the appellant. From the statement of PW6 Kulwant Singh, all the necessary ingredients i.e. demand, acceptance and recovery are proved. However, PW1 Jaswant Singh shadow witness does not support the prosecution version. His deposition runs as under :- "About 7/8 months ago I came to office of Regional Department Patiala. My signatures were obtained on 5/6 papers at Patiala. My signatures were obtained only at Patiala after that I did not go to Samana along with the Police Party. No tainted amount was passed on to the accused in my presence by Kulwant Singh." On the request of the Assistant Public Prosecutor that the witness was suppressing the truth, he was subjected to cross-examination of the Assistant Public Prosecutor. He was cross-examined at length and was confronted with his statement Ex.PA, recorded under Section 161 of the Code of Criminal Procedure. He admitted his signatures on memos Ex.PB, PC, PD and Ex.PE. According to him, these documents were read over to him and he signed the same at the asking of the police. These documents were blank and he signed them in the office of the DSp, Vigilance Patiala. 12. Now, the question arises, whether in the absence of corroboration from the shadow witness, the testimony of the complainant can be acted upon to sustain the conviction of the appellant. In this case the testimony of PW6 Kulwant Singh receives credence. It carries conviction in my mind irrespective of the fact that the shadow witness does not furnish corroboration. The complainant had no motive to falsely implicate the appellant. Evidence of the complainant is sufficiently corroborated by surrounding circumstances. Corroboration need not be direct. The Apex Court in the case of Ramesh Kumar Gupta v. State of M.P., AIR 1995 SC 2121 observed that as a rule of law, it cannot be laid down that the evidence of every complainant in a bribe case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature, depends upon the facts and circumstances of each case. In the above referred to case, accused police Inspector was alleged to have accepted bribe. Positive result of phenolpthalein powder showed that he had handled the currency notes. Whether corroboration is necessary and if so to what extent and what should be its nature, depends upon the facts and circumstances of each case. In the above referred to case, accused police Inspector was alleged to have accepted bribe. Positive result of phenolpthalein powder showed that he had handled the currency notes. His version that he had no knowledge of the notes was without substance. Evidence of the complainant was sufficiently corroborated by surrounding circumstances. It was observed that corroboration need not be direct. The ingredients of demand and acceptance of bribe money by the appellant and the recovery of the bribe money from him are cogently proved from the statement of PW6 Kulwant Singh. PW1 Jaswant Singh - shadow witness does not corroborate the complainant on these aspects, but the prosecution case is not enfeebled on this account. 13. So far as recovery of the bribe money from the appellant is concerned, there are the testimonies of PW6 Kulwant Singh (complainant), PW7 Ashok Kumar (witness of the trap and recovery) and PW8 Pritpal Singh Thind DSP, Vigilance (who had conducted the raid). These witnesses cogently proved that the appellant was searched and the tainted amount of Rs. 100/- was recovered from the internal pocket of his pant. The numbers of the recovered currency notes were compared with the numbers written in the entrustment memo and these tallied. The recovered currency notes were taken into possession vide recovery memo Ex.PC. 14. The Ld. Counsel for the appellant argued that there is discrepancy about the currency notes allegedly recovered from the appellant and the currency notes produced at the trial during the course of examination of the prosecution witnesses. It is pointed out that only 10 currency notes Ex.P3 to P12 were produced, while according to the prosecution version 10 currency notes each of the denomination of Rs. 50/- and 5 currency notes each of the denomination of Rs. 100/- were entrusted to the complainant for passing on to the appellant. Indeed, only 10 currency notes each of the denomination of Rs. 50/- were produced and exhibited at the trial. Five currency notes each of the denomination of Rs. 100/- were neither produced nor exhibited, may be due to oversight or negligence of the Assistant Public Prosecutor. 100/- were entrusted to the complainant for passing on to the appellant. Indeed, only 10 currency notes each of the denomination of Rs. 50/- were produced and exhibited at the trial. Five currency notes each of the denomination of Rs. 100/- were neither produced nor exhibited, may be due to oversight or negligence of the Assistant Public Prosecutor. Their non- production has got no vitiating effect so far as the factum of the recovery of tainted money from the appellant is concerned. When money is recovered from the pocket of an 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 of the Act. The presumption is rebuttable presumption and it is by proof and not by explanation, which mat seem to be plausible. The hand-wash and the pant-wash were sent for analysis to the Forensic Science Laboratory. The result was positive. The solutions were found to be the mixture of phenolphthalein powder and sodium carbonate. This result corroborates the prosecution version regarding recovery of the tainted money from the appellant after he had counted the currency notes and had put them in his pocket. The Apex Court in the case of T. Shanker Prasad v. State of Andhra Pradesh, 2004(1) RCR(Crl.) 784 observed while dealing with the appeals of Andhra Pradesh High Court, which upheld the conviction of the appellants under Sections 7, 11 and 13(1)(d) read with Section 13(2) of the Act and under Section 120-B of the Indian Penal Code, that proof does not mean proof to rigid mathematical demonstration, because that is impossible. It must mean such evidence as would induce a reasonable man to come to a particular conclusion. It was further observed that where bribe money is recovered as a result of trap and the trap witnesses turned hostile, the court may convict the accessed on the basis of evidence of the complainant and official witnesses and other circumstantial evidence. It was further observed in para No. 23 of this judgment that when money was recovered from the pocket of an accused, a presumption under Section 7 of the Act is obligatory. It is presumption of law and casts an obligation on court to operate it in every case brought in Section 7 of the Act. It was further observed in para No. 23 of this judgment that when money was recovered from the pocket of an accused, a presumption under Section 7 of the Act is obligatory. It is presumption of law and casts an obligation on court to operate it in every case brought in Section 7 of the Act. The presumption is a rebuttable presumption and it is by proof and not by explanation, which may seem to be plausible. In the case of Balwinder Singh v. State of PUnjab, 1989(2) RCR(Crl.) 105 (P&H), it was laid down that where currency notes were recovered from the pocket of the accused (a Patwari), presumption under Section 4 (of the old Act) would be raised that the accused accepted money as motive and not as remuneration. The words "unless contrary is proved", mean that presumption raised under Section 4 has to be rebutted by proof and not my mere explanation, which may be plausible. In the case in hand, the recovery of the tainted bribe money from the appellant is proved beyond every reasonable doubt by cogent evidence. The appellant has not rebutted the presumption. He merely stated in his statement recorded under Section 313 of the Code of Criminal Procedure that he did not demand nor accept any alleged tainted amount and no alleged recovery was ever effected from him. 15. The appellant has come forward with the following explanation given in his statement recorded under Section 313 of the Code of Criminal Procedure :- "I am innocent. I have been falsely implicated by the complainant, as he has not produced the record of utilization of first instalment of loan plus 25% expenditure from his own pocket and as per rules without utilization certificate and record of expenditure of 25% from his pocket, second instalment could not have been issued. The complainant has spent the first instalment for repaying loan of tractor to bank and he was not utilising the loan for the purpose for which he has taken it. I did not demand or accept any alleged any tainted amount and no alleged recovery was ever effected from me." 16. There is no evidence that the complainant had spent the first instalment for repaying loan of a tractor to the bank. The complainant in his cross- examination admitted that he had taken loan of Rs. I did not demand or accept any alleged any tainted amount and no alleged recovery was ever effected from me." 16. There is no evidence that the complainant had spent the first instalment for repaying loan of a tractor to the bank. The complainant in his cross- examination admitted that he had taken loan of Rs. 1,75,000/- from State Bank of Patiala Branch Khaura for getting a tractor and he had become defaulter in the payment of instalments. The complainant admitted in cross-examination that he had not given any certificate to the House Federation, Samana regarding the utilisation of his first instalment. Further, he admitted that he had not given any site plan or details of construction raised with the help of the first instalment. The Ld. Counsel for the appellant argued that when the complainant had not produced before the appellant the Utilisation Certificate and the site plan, the appellant was not capable of moving the file of the complainant, recommending for the release of second instalment. Hence, the version of the complainant is concocted that the appellant demanded and accepted the bribe money from him. In fact, the complainant was annoyed with the appellant and he made out a false case against him. The complainant himself was at fault in not producing Utilisation Certificate and the site plan. The contention of the Ld. Counsel for the appellant is not tenable. Even if the complainant did not produce these documents before the appellant, he committed an offence in demanding and accepting illegal gratification from the complainant. The appellant cannot find an escape contending that he was not capable of favouring the complainant for want of aforesaid documents. When a public servant is charged under Section 7 of the Act and it is alleged that he accepted the illegal gratification for doing or procuring an official act, it is not necessary for the prosecution to prove whether or not the accused public servant was capable of doing or intended to do such an act. 17. No other point was raised. 18. There is no infirmity in the impugned judgment of conviction and the sentence order. Accordingly, this appeal is dismissed. The appellant was admitted to bail pendency of the appeal. The Chief Judicial Magistrate, Patiala is directed to issue warrants of arrest against the appellant and send him to jail to undergo the remaining period of his sentence.