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2009 DIGILAW 229 (PNJ)

Sukhjitpal Singh v. State Of Punjab

2009-01-29

K.C.PURI

body2009
Judgment K.C.Puri, J. 1. By way of present appeal, the appellant has challenged the Judgment dated 11.4.2002 passed by Shri Jagroop Singh, the then Special Judge, Kapurthala whereby he was convicted under Section 7 read with Section 13(2) of the Prevention of Corruption Act (in short Act 1988) and vide order of same date, be was sentenced to undergo imprisonment for five years and to pay a fine of Rs. 2,000/- and in default of payment of fine, to suffer further rigorous, imprisonment for six months. 2. The facts, in-short are as follows: The present case was registered on the statement. Exhibit PE, of Dilbagh Singh, PW3. According to him, he had purchased 10 Kanals 16 Marias ofland on 15.05.1998 from his brother Jagmohan Singh and approached the accused who was working as a Patwari forgetting the mutation sanctioned in his favour. On 21.07 .1998, Dilbagh Singh gave a photostat copy of the sale deed and the original power of attorney to the accused but the accused told him that mutations were not entered like that and that he should part with Rs. 1,500/- for getting the mutation entered, He assured that on payment of said amount, the mutation would be entered and got sanctioned. Dilbagh Singh. PW3 told him that he was a poor person on which the accused agreed to charge Rs. 1,000/- as illegal gratification. Dilbagh Singh told him that he was not having the said amount with him and went back to his house. 3. On 22.07.1998, Dilbagh Singh met Mohan Singh and told him about said facts who advised him to get the accused arrested from the Vigilance Department. Dilbagh Singh and Mohan Singh went to the DSP at Vigilance Bureau, Kapurthala who recorded statement, Exhibit PE of Dilbagh Singh. 4. Dilbagh Singh produced before the DSP, five currency notes of Rs.100/- denomination each and one currency note of Rs.500/ denomination which were treated with Phenolphthalein Powder and were handed back to Dilbagh Singh. A memo was prepared in this respect. DSP also gave demonstration by preparing solution of Sodium Carbonate in a glass of water, the colour of which did not change. When a paper treated with Phenolphthalein Powder was stirred in it, its colour became piny. The solution and the paper were destroyed and the hands of the police party were got washed with soap. DSP also gave demonstration by preparing solution of Sodium Carbonate in a glass of water, the colour of which did not change. When a paper treated with Phenolphthalein Powder was stirred in it, its colour became piny. The solution and the paper were destroyed and the hands of the police party were got washed with soap. In this respect, a memo was prepared by the DSP. The DSP then joined Deva Nand PW4 in the party who told about the facts of the case and an endorsement was made on the statement, Exhibit PE of Dilbagh Singh which was forwarded to the Police Station and the present case was registered. 5. The police party then proceeded towards village Dhilwan in which the office of the accused was situated. Dilbagh Singh and Mohan Singh, PWs, were sent to the office of the accused, with a direction to hand over tainted currency notes to the accused if demanded by him and thereafter Mohan Singh to give a signal to the remaining police party After some time, a signal was received from Mohan Singh upon which the police party raided the office of the accused. DSP Jaipal Singh introduced himself to the accused. He prepared solution of Sodium Carbonate in a glass of water, the colour of which did not change. When the fingers of the hands of the accused were washed with the solution, its colour became light pink. It was put in a nip and sealed with seal CS and was taken into possession vide memo attested by the PWs. When the personal search of the accused was conducted, the said six currency notes were recovered from the pocket of the shirt of the accused out of which five notes were of Rs. 100/- denomination, and one note was of Rs. 500/- denomination. The serial numbers of the currency notes tallied with the serial numbers mentioned in memo Exhibit PC. These notes were taken into possession vide memo Exhibit PF, attested by the prosecution witnesses. The DSP then arranged a shirt for the accused, His shirt was removed. Solution was prepared by putting Sodium Carbonate in a glass of water the colour of the water did not change. When the pocket of the shirt of the accused from which tainted currency notes were recovered was reversed and washed in that solution, the colour of the solution became pink. Solution was prepared by putting Sodium Carbonate in a glass of water the colour of the water did not change. When the pocket of the shirt of the accused from which tainted currency notes were recovered was reversed and washed in that solution, the colour of the solution became pink. It was also put in a nip and sealed and taken into possession. On further search of the accused, purse containing Rs.850/- and one identity card were also recovered. There was a mutation register lying on the table of the accused in which photostat copy of sale deed and the original power of attorney were lying. The same were also taken into possession. 6. After completion of investigation, challan was presented against the accused in the Court, The accused was charge-sheeted accordingly to which he pleaded not guilty and claimed trial. 7. In order to prove its case, the prosecution examined PWl Constable Surjit Singh, PW2 HC Charanjit Singh, PW3 Dilbagh Singh, PW4 Deva Nand, PW5 Pawan Kumar. PW6 Ramesh Kumar, PW7 Mohan Singh and PW8 Jaipal Singh. The accused was examined under Section 313 Cr.P.C. He denied the prosecution allegations and pleaded innocence. He took the plea that he has been falsely implicated in the case. 8. In his defence, the accused examined DW1 Randhir Singh, DW2 Palwinder Singh and DW3 Charanjit Singh. After trial, the accused was convicted and sentenced, as noticed in the earlier part of the judgment. The learned counsel for the appellant has submitted that to prove the ingredients of offences under Sections 7 and 13 of the Act of 1988, the prosecution is required to establish the demand, acceptance and recovery of illegal gratification. It is submitted that the prosecution has failed to prove the factum of demand. Except the complainant, no other independent witness has proved the factum of demand and, on that count, the prosecution story is doubtful. It is contended that on 21.07.1998, no one except the complainant was presentat the time of alleged demand. The raid was alleged to have been conducted on 22.07.1998 and according to PW3 Dilbagh Singh on 21.07.1998, no one was present when the demand was made by the accused/appellant. So, in view authority in case Ayyasami v. State of T.N.1. AIR 1992 SC 644. the appellant is entitled to acquittal. 9. The raid was alleged to have been conducted on 22.07.1998 and according to PW3 Dilbagh Singh on 21.07.1998, no one was present when the demand was made by the accused/appellant. So, in view authority in case Ayyasami v. State of T.N.1. AIR 1992 SC 644. the appellant is entitled to acquittal. 9. I have carefully considered the said submission and have gone through the above-said authority . In authority in case Ayyasami (supra), the hand-wash of accused did not turn pink and the money was said to have been recovered from a drawer. So, in the circumstances, the prosecution has failed to prove the acceptance of money by the accused in the said case. In the present case, the complainant, shadow witness, official witness and the Investigating Officer have proved the case of the prosecution beyond reasonable doubt. So, the appellant cannot derive any benefit from the authority in case Ayyasami (supra). The above-said witnesses have been cross-examined at length but nothing could be brought on the file to discard their sworn testimony. A Gazetted Officer would be the last person to implicate a Government employee, unless there is a strong motive for the same. No strong motive has been alleged or proved on the file to falsely implicate the accused. 10. It is further submitted that trap witness is not a witness for giving or taking of bribe money. It is submitted that in the present case, the Investigating Officer is a trap witness and such has violated the provisions of the Act. To support his contention, the counsel for the appellant has relied upon Surendra Salmi and Ors. (In Jail) v. State of U.P.2. 1997 CLJ 1670. I have carefully considered the said submission but do not find any force in the same- 11. In this case,,PW7 Mohan Singh is the shadow witness. Mohan Singh has categorically stated that he along with complainant Dilbagh Singh went to the office of the accused on 22.07.1998 and the accused demanded Rs. 1,000/- as illegal gratification and the complainant paid the same to him on his demand for entering the mutation of sale deed. So, authority in case Surendra Sahai and others (In Jail) (supra) is remotely connected with the facts of the present case. In that case, trap officer was not a witness of actual occurrence of giving and taking bribe. 1,000/- as illegal gratification and the complainant paid the same to him on his demand for entering the mutation of sale deed. So, authority in case Surendra Sahai and others (In Jail) (supra) is remotely connected with the facts of the present case. In that case, trap officer was not a witness of actual occurrence of giving and taking bribe. In the present case, the shadow witness PW7 Mohan Singh has categorically stated that he is a witness of giving and taking the bribe. 12. The learned counsel for the appellant has further submitted that it is mandatory to obtain sanction from the competent authority under Section 19 of the Act of 1988. In the present case, PW5 Pawan Kumar Kanungo, Office of Deputy Commissioner, Kapurthala was not in a position to recognize the signatures of Deputy Commissioner. So, PW5 Pawan Kumar could not prove the fact that sanction was accorded by the Deputy Commissioner after applying her mind So, in these circumstances, the sanction is not valid. 13. I have carefully considered the said submission and have gone through the testimony of PW5 Pawan Kumar. This witness has categorically stated that he identified the signatures of the Usha R. Sharma, the then Deputy Commissioner, Kapurthala. He had been working as Naib Sadar Kanungo With her. Authority in Surendra Sahai and Ors. (supra) does not help the accused/appellant, in any manner. 14. The learned counsel for the appellant has further submitted that charge has not been properly framed. Charges under Sections 7 and 13 of the Act of 1988 are separate and independent and separate charges were liable to be framed. Charge under Section 7 read with Section 13(2) of the Act, 1988 has been framed. So, the appellant is entitled to the benefit of same. I have carefully considered red the said submission and have gone through the record of the case. The purpose of framing charge is to make aware the accused as to under what provisions of law he was being charged. The appellant has been charge-sheeted under Section 13(2) read with Section 7 of Act, 1988. So, in these circumstances, no prejudice has been caused to the appellant. 15. The learned counsel for the appellant has further submitted that motive for the occurrence has not been proved. The mutation was not entered/The bribe money was for making an entry in the mutation. So, in these circumstances, no prejudice has been caused to the appellant. 15. The learned counsel for the appellant has further submitted that motive for the occurrence has not been proved. The mutation was not entered/The bribe money was for making an entry in the mutation. It is further submitted that Lambardar was required to be present at the time of entry in the mutation. No Lambardar was present on 22.07.1998. Balbir Kaur, power of attorney of Dilbagh Singh, PW3 was not produced at the time of entry in the mutation. No original sale deed was also produced. So, mutation could not be entered in the absence of above-said documents and the Lambardar. So, the prosecution story is doubtful. I have carefully considered the sad submission and have gone through the record of the case. 16. Presence of Lambardar is required at the time of sanction of mutation. The case of the prosecution is that only an entry in the mutation on the basis of sale deed was to be made. Balbir Kaur, Power of Attorney, Lambardar and the original sale deed were required at the time of attestation of mutation by the officer. PW3 Dilbagh Singh, in the cross-examination, has stated that he gave the accused a copy of sale deed and the power of attorney and he kept the same with him and thereafter demanded illegal gratification. So, the above-said argument does not cut any ice before me. 17. The learned counsel for the appellant has further submitted that Dilbagh Singb complainant did not have bribe money and according to him, he took money from Jit Singh, milk vendor of village of Fattu Chak Miani but DW1 Randhir Singh ex-Sarpanch of village Fattu Chak Miani has stated that there was no man by the name of Jit Singh in the said village who was working as a milk vendor. It is submitted that, in these circumstances, DSP might have given the money to the complainant for giving bribe. I have carefully considered the said submission but do not find any force in the same. The testimony of DW1 Randhir Singh and DW2 Palwinder Singh is not sufficient to create a dent in the prosecution version. A Patwari generally wields influence in the surrounding villages and as such not much importance can be given to the testimony of DW1 Randhir Singh and DW2 Palwinder Singh. 18. The testimony of DW1 Randhir Singh and DW2 Palwinder Singh is not sufficient to create a dent in the prosecution version. A Patwari generally wields influence in the surrounding villages and as such not much importance can be given to the testimony of DW1 Randhir Singh and DW2 Palwinder Singh. 18. The learned counsel for the appellant has further submitted that PW3 Dilbagh Singh is not a credible witness. He had litigation with his brother and got the disputed piece of land by litigating with his brother. His wife Balbir Kaur got registered an FIR against the brother of Dilbagh Singh. Dilbagh Singh made derogatory statement against the defence counsel. Dilbagh Singh did not bring his wife Balbir Kaur who had power of attorney in her favour to represent the seller at the time of entering mutation. I have carefully considered the said submission but do not find any force in the same. Mere fact that Dilbagh Singh had litigation with his brother does not bring discredit to his testimony. His statement, in crossexamination, in respect of defence counsel, also does not create any doubt in the prosecution version in the presence of demand, acceptance and recovery of illegal gratification. His handwash proved positive. In the present case, the presence of Balbir Kaur was not required at the time of making an antry but the same was required at the time of attestation by the officer. It is further contended that the testimony of PW7 Mohan Singh cannot be accepted as he is the friend of Dilbagh Singh, PW3 and his son was prosecuted. Only a known person would accompany the complainant. Mere fact that his son was prosecuted does not make his testimony doubtful. 19. The submission of counsel for the appellant to the effect that since PW4 Deva Singh, an official witness, was not a Gazetted Officer and his name was not in the list of Panches prepared by the Vigilance Department, his testimony should not be accepted is concerned, the same is without any substance. He was posted as a Clerk in the office of DTO, Kapurthala and according to his testimony, he was deputed.by the DTO to accompany the raiding party He has with-stood the test of lengthy or cross- examination. There was no reason for him to falsely implicate the accused in such a serious case. He was posted as a Clerk in the office of DTO, Kapurthala and according to his testimony, he was deputed.by the DTO to accompany the raiding party He has with-stood the test of lengthy or cross- examination. There was no reason for him to falsely implicate the accused in such a serious case. His testimony cannot be discarded merely because he is not a Gazetted Officer. Authority in case J.A. Naidu etc. v. State of Maharashtra,3 AIR 1979 SC 1537. is remotely connected to the facts of the present case. In the said case, documentary and oral evidence was not found reliable. There is nothing to this effect, in the present case. 20. The learned counsel or the appellant has further submitted that fine of Rs. 2,000/-has been imposed in violation of Section 16 of the Act, 1988. He has contended that, in this case, the value of the property or the amount of bribe is Rs.1,000/- and as such fine to the extent of Rs.1,000/- should have been imposed. The trial Court has imposed the sentence of Rs.2,000/- which is beyond scope of Section 16. I have carefully considered the said submission but do not find any force in the same. Section 16 only lays down that fine of the value of property can be imposed. So, it cannot be said that fine of Rs.2,000 is without jurisdiction. 21. The learned counsel for the appellant has further submitted that in para No.25 .of the judgment, the trial Court has given comments on the defence counsel. These comments are out of jurisdiction and cannot be part of judgment. It is submitted that in case the Judge was annoyed with the defence counsel, he can start contempt proceedings by writing insulting sentences but no sentence was recorded against the defence counsel. In reply to the above noted submissions, the learned State counsel has submitted that it is only Shri P.S. Dhaliwal who could request for expunging those remarks and the appellant had no locus standi to challenge those observations. It is contended that those observations were based upon the testimony of complainant. I have carefully considered the said submission. 22. From a bare reading of para No.25 of the judgment, it is revealed that Shri P.S. Dhaliwal, defence counsel is the aggrieved party. It is contended that those observations were based upon the testimony of complainant. I have carefully considered the said submission. 22. From a bare reading of para No.25 of the judgment, it is revealed that Shri P.S. Dhaliwal, defence counsel is the aggrieved party. The said remarks can be expunged at his request and the appellant has no locus-standi to challenge the same. So, the above said contention of the learned counsel for the appellant cannot be accepted. However, the above said observations made in para No.25 of the judgment cannot debar Shri P.S. Dhaliwal from challenging the same. 23. The learned counsel for the appellant has further submitted that no identification of place of occurrence had been made during the course of trial. No witness from the Revenue Department was produced to identify the place of occurrence. It the duty of the prosecution to prove every important fact of the case and the burden of proof cannot be shifted on the accused. I have carefully considered the said submission but do not find any force in the same also. It is the definite case of the prosecution that bribe money was given in the office of the accused. He was working as a. Patwari So, there was no necessity to produce any witness by the prosecution to identify that place of occurrence. The Patwar Khana is at a fixed place and every one known this fact. So the above-said argument is without any substance. 24. Lastly, it is submitted that the punishment awarded to the appellant, is harsh, He has been sentenced to undergo rigorous imprisonment for a period of five years. He has already undergone the sentence of 19 months. So, it is submitted thai, the sentence may be reduced to the period already undergone by the appellant. I have carefully considered the said submission and have gone through the record. 25. The occurrence relates to 22.07.1998. The appellant has undergone physical and mental agony. Therefore, the sentence of justice would be met in case the sentence of the appellant is reduced to 1½ years (one year and six months) instead of five years awarded by the learned trial Court. However, the sentence of fine is confirmed. With this modification, this appeal stands disposed oi, A copy of this judgment be sent to the trial Court for strict compliance. Appeal disposed of.