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2009 DIGILAW 701 (PNJ)

Prabhu Dayal v. State Of Haryana

2009-04-17

HARBANS LAL

body2009
Judgment Harbans Lal, J. 1. This appeal is directed against the judgment dated 1.4.1998/order of sentence dated 2.4.1998 passed by the Court of learended Special Judge, Rohtak whereby he convicted and sentenced the accused Parbhu Dayal to undergo rigorous imprisonment for three years and to pay a fine of 2,000/- under Sections 7 and 13(l)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for brevity, the Act) and in default of payment of the same to undergo further rigorous imprisonment for one year. 2. Shortly put, the facts of the prosecution case are that on 22.3.1995 Deva Nand Pandey complainant resident of Panchkula employed as Supervisor in Nissant Benevolent Printing Press, Panchkula made application to the Director, Medical College, Rothak stating therein that stationery of this College was printed by the afore-mentioned Printing Press. On 19.3.1995, he came to collect payment of bill thereof for Rs. 1,02,185.10. The accused Parbhu Dayal Accountant asked him to come after two days. Accordingly, he came over there in the morning of 22.3.1995 and asked the accused to give him the draft of the said amount. The accused started putting him off on one pretext or the other. After a short while, he demanded bribe of Rs. 1,000/- from him for delivery of the draft to him and further told that the same would not be given to him without payment of the aforesaid bribe money. He (complainant) did not want to pay the same. So, he moved the above-mentioned application for necessary action. The same was forwarded to the Superintendent of Police, Rohtak, who marked it to the DSP to conduct the raid. Anil Dhawan SSP along with staff went at the Office of Deputy Commissioner, Rohtak in Mini Secretariat. Mr. T.V.S.N. Parsad, Additional Deputy Commissioner, Rohtak met there. On being informed about the application, he deputed Dharmpal Singh Yadav, City Magistrate, Rohtak to join the raiding party. Thereafter, the raiding party went to the Office of Dr. D.R. Yadav and officiating Director of Medical College Medical Superintendent we also joined in the raiding party. The complainant was present there. Dr. O.P. Lathwal, Deputy Medical Superintendent was also joined in the raiding party. The complainant gave ten currency notes each in the denomination of Rs. 100/- to the Deputy Superintendent of police vide memo in which their numbers were noted down. The complainant was present there. Dr. O.P. Lathwal, Deputy Medical Superintendent was also joined in the raiding party. The complainant gave ten currency notes each in the denomination of Rs. 100/- to the Deputy Superintendent of police vide memo in which their numbers were noted down. These notes were initialed by the DSP as well as the City Magistrate. After having applied the phenophathalein powder, these notes were handed over to the complainant vide memo with the instructions to go to the accused and pay him the same on his demand as bribe and thereafter to give signal by moving his hand on his head. Dr. Lathwal was sent as shadow witness with instructions to remain at some distance behind the complainant to watch the giving and taking of the said amount and to transmit the appointed signal to the remaining members of the raiding party after the transaction. Mr. Anil Dhawn DSP got registered the formal FIR. The complainant went to the accused in cashier room. Dr. Lathwal stood at some distance. The accused demanded the bribe money of Rs. 1,000/- The complainant paid the aforesaid marked currency notes to the accused, who counted the same and kept in the right hand pocket of his pant and gave authority letter and draft to the complainant, who came out in the gallery and gave the fixed signal to the shadow witness. Dr. Lathwal passed on the same to the remaining members of raiding party, which reached the spot and apprehended the accused. On being asked, the accused handed over such currency notes to the DSP. Their numbers tallied with the numbers mentioned in the memo. These currency notes were washed in the solution of sodium carbonate which turned pink. The same was converted into two parcels. The currency notes were also made into a parcel. The accused was arrested. After completion of investigation, the charge-sheet was laid in the Court for trail of the accused. 3. The accused was charged under Sections 7 and 13 of the act to which he did not plaed guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined Constable Raj Singh P.W. 1 Draftman, ASI Mahi Pal P.W. 2, S.K. Sharma P.W. 3, Head Constable Dalel Singh P.W. 4, Complainant Deva Nand Pandey P.W. 5, Dharmpal Singh P.W. 6. Dr. To bring home guilt against the accused, the prosecution has examined Constable Raj Singh P.W. 1 Draftman, ASI Mahi Pal P.W. 2, S.K. Sharma P.W. 3, Head Constable Dalel Singh P.W. 4, Complainant Deva Nand Pandey P.W. 5, Dharmpal Singh P.W. 6. Dr. Om Parkash Lathwal P.W. 7, Om Parkash Accounts Officer P.W. 8, Constable Kapoor Singh P.W. 9, Anil Dhawan DSP P.W. 10 and closed its evidence. 4. When examined under Section 313 of Cr.P.C, the accused admitted that he was working as an Accountant in Medical College, Rohtak on 22.3.1995 and that the bill of Rs. 1,02,185.10 of the aforesaid printing press was due against this College as charges of the stationery etc., but he denied all the other incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He has come up with the plea that he was called from his seat to the Office of Medical Superintendent and then to police Station, where he was falsely involved in this case at the instance of Dr. Lathwal, with whom he had previous enmity and that all the writing work was done in the police station. In his defence, he examined the Satish Kumar D.W. 1, Gulshan Kumar D.W. 2. After hearing the learned public prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with the conviction/sentence, he has preferred this appeal. 5. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 6. Mr. S.S. Narula, Advocate appearing on behalf of the appellants canvassed at the bar that Deva Nand Pandey complainant P.W. 5 having been declared hostile, there is no evidence in relation to the demand or acceptance of bribe money. It is own case of the prosecution that no one else had witnesses the handing over the bribe money. There is also no evidence as to what sort of conversation had taken place between the complainant and the appellant. There is also no independent witness to the alleged recovery of bribe money. The witnesses examined on this aspect being officials are highly interested in the success of the case. They cannot be relied upon in the absence of independent corroboration. The recovery by itself cannot be held to be sufficient to sustain conviction. There is also no independent witness to the alleged recovery of bribe money. The witnesses examined on this aspect being officials are highly interested in the success of the case. They cannot be relied upon in the absence of independent corroboration. The recovery by itself cannot be held to be sufficient to sustain conviction. The, currency notes which were allegedly given were allegedly initiated by P.W. 10 DSP Anil Dhawan and P.W. 6 Dharmpal Singh, City Magistrate. When these were produced in the Court, they did not bear the initials of any official. At the time of alleged handing over of bribe money, the appellant was not in position to do a favour or disfavour or disfavour to the complainant. The occurrence is of 22.3.1995. The draft had already been got prepared by the appellant from the Bank on 20.3.1995. Thereafter, he had handed over the same to the dispatcher D.W. 2 Gulshan Kumar, who has specifically deposed about the delivery of the same to the complainant after obtaining his signatures in the dispatch register. There is no evidence to the effect that the bank draft was handed over to the complainant by the accused. There is also nothing to show that the accused was in possession of the bank draft at the relevant time. Thus, the question of demand of the alleged bribe money by the appellant does not arise as he was no more in possession of the stated draft. The 19th March, 1995 being Sunday, the office lay closed. So, on that day, neither complainant could ask for delivery of draft nor the accused could put forth any demand of illegal gratification. Furthermore, the evidence of Satish Kumar Cashier D.W. 1 rules out the possibility of conducting the raid in the office of the appellant on 22.3.1995. This apart, the statements of the prosecution witnesses are fraught and bristle with major discrepancies. Moreso, there is inexplicable delay in lodging of the FIR which appear to have been antetimed. Furthermore, the evidence of Satish Kumar Cashier D.W. 1 rules out the possibility of conducting the raid in the office of the appellant on 22.3.1995. This apart, the statements of the prosecution witnesses are fraught and bristle with major discrepancies. Moreso, there is inexplicable delay in lodging of the FIR which appear to have been antetimed. The special report had reached the hands of the concerned Magistrate after seven and a half hours of its alleged registration at 5:15 P.M. to buttress these stances, he has relied upon Ram Pur hash Arora v. The State of Punjab, AIR 1973 Supreme Court 497; Amrik Singh v. State of Punjab, 2005(4) Recent Criminal Reports (Criminal) 310; G. V. Nanjundiah v. State (Delhi Administration), AIR 1987 Supreme Court 2402; State of Haryana v. Sudesh Kamal, 1991(2) Recent Criminal Reports 641; Darshan Singh v. The State of Punjab, 1988(2) Recent Criminal Reports 299; State of U.P. v. Ram Asrey, 1990 CAR 133 (Supreme Court); Jamana v. The State of Haryana, 1984(2) Chandigarh Law Reporter 85; Suraj Mal v. The State (Delhi Administration), AIR 1979 Supreme Court 1408; Salimkhan Sardarkhan v. State of Gujarat, 1986(1) Recent Criminal Reports 40; Ram Kishore v. State, 1987 (2) Recent Criminal Reports (Criminal) 30; Kuldip Rai v. State of Punjab, 2002(2) Recent Criminal Reports (Criminal) 781, Raghbir Singh v. State of Punjab, AIR 1976 Supreme Court 91; Resham Singh v. The State, (U.T. Chandigarh) 1981 Punjab Law Reporter 402; and Moti Lal Benerjee v. State of Haryana, 1985(2) Recent Criminal Reports (Criminal) 570. 7. To controvert these submissions, Mr. Vashist maintained that the admission of his signatures on Ex. PG/1 to Ex. PG/7 by the complainant Deva Nand Pandey P.W. 5 in itself is enough to say that the demand of bribe and acceptance of the same by the accused-appellant has been established. 7. To controvert these submissions, Mr. Vashist maintained that the admission of his signatures on Ex. PG/1 to Ex. PG/7 by the complainant Deva Nand Pandey P.W. 5 in itself is enough to say that the demand of bribe and acceptance of the same by the accused-appellant has been established. He further argued that of course, Dharmpal Singh P.W. 6 in his cross-examination has testified that my initials and initials of Anil Dhawan are not there on the notes taken out from the parcel, but it is not to be lost sight of the fact that when the trained currency notes were dipped in the solution of sodium carbonate, the initials thereon would have certainly got washed off and it is because of this reason that the same were not found existing on the tainted currency notes when these were shown to this witness in the Court. The recovery of tainted currency notes from the accused-appellant is abundantly established on the record. I have well considered the rival contentions. 8. As ruled by the Apex Court in re: Ram Prakash Arora (supra) "evidence of interested and partisan witnesses who were concerned in the success of the trap must be tested in the same way as that of any other interested witness. In a proper case, the Court may look for independent corroboration before convicting the persons." It was also held the "there was no independent search witness and no other evidence from which any corroboration could be found of the evidence given by the members of the raiding party including the complainant. The prosecution had not proved the charges beyond all reasonable doubt. Hence, the conviction was liable to be set aside." 9. Adverting to the present case, Deva Nand Pandey with whom virtually the prosecution was to sink and swim was declared hostile. On being cross-examined by the learned Public Prosecutor for the State, he did not budge even an inch from his firm stand. To put it differently, no material favorable to the prosecution could be elicited from him. Of course, when he was under cross- examination by the Public Prosecutor, he testified that "I have seen my signatures on Ex. PG/1 to Ex. PG/7". To put it differently, no material favorable to the prosecution could be elicited from him. Of course, when he was under cross- examination by the Public Prosecutor, he testified that "I have seen my signatures on Ex. PG/1 to Ex. PG/7". But in the next breath by volunteering, he wiped out this evidence by deposing that " my signatures were obtained on blank papers in the police station." It was only his evidence which was to establish the principal ingredients of the offence that the accused-appellant had demanded the bribe money and on his asking, he had paid the same and was accepted as such by the accused-appellant. The testimony of this witness does not satisfy these ingredients of the offence. Dharampal Singh P.W. 6 being the City Magistrate at the time of occurrence was an official witness. He has deposed that "after paying over Rs. 1,000/- to the accused, the complainant made the signal to Dr. Lathwal and he transmitted the signal to the raiding party. On receiving signal, we rushed to the room of Cashier, where accused was found present there. On our demand, the accused took out Rs. 1,000/-from the right side of pant worn by him. The currency notes which were bearing the initials of DSP Anil Dhawan and mine were got recovered." It is not in his evidence that he had overheard the accused-appellant demanding bribe money from the complainant and on his being asked such money was given by the complainant to the accused-appellant. Furthermore, as per his evidence, on their demand, the accused took out Rs. 1,000/- from the right side pocket of his pant and handed over the same. It clearly indicates that the tainted currency notes were not recovered in the course of search of the right side pocket of his pant. It is in the cross-examination of this witness that my initials and initials of Anil Dhawan are not there on the notes taken out from the parcel. However, these were allegedly dipped in the stated solution but despite that some marks of their initials would have been there. In the absence thereof, it is very difficult to say that the currency notes produced at the trial were the same. It has nowhere been explained in the evidence by the prosecution that the initials borne on these notes got washed off when these were dipped in the alleged solution. In the absence thereof, it is very difficult to say that the currency notes produced at the trial were the same. It has nowhere been explained in the evidence by the prosecution that the initials borne on these notes got washed off when these were dipped in the alleged solution. It is in the cross-examination of this witness Dharampal Singh (sic.) that "I do not remember if the police had recorded my statement in this case. It did not happen that I dictated my statement and DSP went on reducing the same into writing." Strangely enough that he has regretted his inability to recollect whether or not his statement was recorded by the police. He being an officer of the rank of City Magistrate at the material time, could not be expected to have become oblivion of this fact. It is in his further cross-examination that "I had stated before the police that I was called by the ADC in his office, where Anil Dhawan DSP was also sitting and there I was asked to accompany the raiding party to the MCH, Rohtak. I also stated before the police that at 3:00 P.M., we reached in the office of D.R. Yadav, MCH, Rohtak and there we found Dr. Lathwal and complainant Diwan Chand were also present. I also stated before the police that there I was told that accused Parbhu Dayal was demanding a sum of Rs. 1,000/- as bribe from the complainant. I also stated before the police that the complainant had given a signal to Dr. Lathwal. I also stated before the police that Anil Dhawan had put his land in the jug of water and thereafter colour of the dated did. not change. I did not state before the police that the draft was given by Pandey to DSP and in turn he sent one person for getting the photostat copy of the same." When this witness, was confronted with his statement Ex. DA, all these facts were not found recorded therein which tends to show that this witness has improved in material particulars of the case. It is highly improbable that this witness being an officer would have forgotten such stark facts. Furthermore, he had given the name of complainant as Dewan Chand though he is Deva Nand Pandey. DA, all these facts were not found recorded therein which tends to show that this witness has improved in material particulars of the case. It is highly improbable that this witness being an officer would have forgotten such stark facts. Furthermore, he had given the name of complainant as Dewan Chand though he is Deva Nand Pandey. These material improvements give an inkling that the transaction as has been suggested by the prosecution did not occur in the alleged manner. It is in the cross-examination of Dr. Om Parkash Lathwal P.W. 7 that "I did not state before the police that I was called by Dr. Yadav who told me that Deva Nand complainant was being asked to pay some amount for issuing the draft and he had sent such a complainant to the police and I also did not state in my statement that he had told me that the DSP is coming for raid and I should remain in the office. I did not consider it relevant to tell the police about the above-mentioned." Then a question was put to him in the terms "Who told you the relevancy of the above facts to be stated in the Court?" He answered that "Nobody has told me about it regarding relevancy." It is in his further cross-examination that "I must have stated before the police that Deva Nand come out of the room and made a signal to me. I do not remember whether I stated before the police that Deva Nand has pointed out towards the accused and told that he has taken Rs. 1,000/-from him." When he was confronted with his statement Ex. DB, these facts were found missing from it. Thus, seemingly, he has also improved upon material aspects of the case. It is apt to be borne in mind that the accused-appellant has put forth that he has been falsely involved at the instance of Dr. O.P. Lathwal (referring to this witness P.W. 7) as he had previous enmity with him and all the writing work was done while sitting in the police station. Thus, the statement of this witness also fails to inspire confidence. 10. It is in the cross-examination of P.W. 8 Om Prakash, Accounts Officer, PGIMS, Rohtak that "Police has never recorded my statement. Accounts Officer is the drawing and disbursing officer. Thus, the statement of this witness also fails to inspire confidence. 10. It is in the cross-examination of P.W. 8 Om Prakash, Accounts Officer, PGIMS, Rohtak that "Police has never recorded my statement. Accounts Officer is the drawing and disbursing officer. After preparation of draft, it is the duty of the dispatcher to sent it to the concerned person or hand over to him. I do not know what was the procedure at that time, as I was not posted there. It is correct that all the drafts issued by our office were sent through dispatcher." As per this evidence, this witness was not examined during investigation. So, I am at loss to understand as to show he has been examined as a witness in this case. Secondly, it is borne out from his extracted cross-examination that it is duty of the dispatcher to send draft after preparation to the concerned person or to hand it over to him. At this juncture, it deserves to be pointed out here that D.W. 2 Gulshan. Kumar who was posted as dispatcher in the Accounts Branch of PGIMS, Rohtak on the day of occurrence, i.e., 22.3.1995 has solemnly affirmed from the official record that "on 22.3.1995 vide entry/dispatch No. 692, I had handed over a draft for Rs. 1.02,185.10 paise bearing No. 299477 to the representative of M/s. Nishant Benevolent, Unit No. 163, Industrial Area, Part-I, Panchkula and obtained his signatures on the said entry for receiving the said draft. I had handed over this draft to Deva Nand Pandey representative of the Company/Firm at about 3:15 P.M. on 22.3.1995, as directed by Section Officer of the Branch." When Deva Nand Pandey (Sic.) was cross-examined by the learned defence counsel he stated that "I reached M.C.H. Rohtak on that day at about 2:00/2:30 P.M. It is correct that I received the draft for the above-mentioned amount from the dispatch clerk between 3:00 or 4:00 P.M. and that dispatch clerk had obtained my signatures in the dispatch register. It is correct that when I was taken to the police station, the accused was also taken along with me. It is correct that I was made to sit separately and after obtaining my signatures, on blank papers, I was escorted by a police man upto Sonepat bus stand from where he made me boarded in a bus and I returned back to Panchkula. It is correct that I was made to sit separately and after obtaining my signatures, on blank papers, I was escorted by a police man upto Sonepat bus stand from where he made me boarded in a bus and I returned back to Panchkula. I was only handed over Rs. 200/- for my personal expenses and it was not within my power to pay any amount as a bribe to anybody. "Further, it is in the evidence of Dharampal Singh P.W. 6 that on 22.3.1995, I was posted as City Magistrate, Rohtak At 3:00 P.M., I was summoned by ADC in his office. At about 3:15 P.M., the raiding party reached in the office of D.R. Yadav, the then officiating Director M.C.H. Rohtak." From the above evidence of Gulshan Kumar (sic), it transpires that he draft was handed over to the complainant at about 3:15 P.M. on 22.3.1995. It follows from the evidence of Dharam Pal Singh (sic.) that the raid was conducted after 3:15 P.M. A fortiori, according to the complainant Deva Nand Pandey, he had received the draft at about 3:00/4:00 P.M. If the draft had already been handed over by the dispatcher to" the complainant then, where was the occasion for latter to give the bribe money to the accused-appellant who was no longer seized of the matter pertaining to the preparation of the draft or its delivery. It is also in the evidence of Dr. Om Prakash Lathwalo P.W. 7 that "Accused took out Rs. 1,000/- from his pocket of the pant and handed over to the DSP." Further Anil Dhawan DSP P.W. 10 has also testified that "Accused himself surrendered the currency notes which were tainted." This evidence leaves no room for doubt that the alleged tainted currency notes were not recovered in consequence of search of the accused- appellant, rather the same were allegedly surrendered by him. Thus, the element of recovery has also not been established in a manner as provided by law. 11. As emanates from the record, no independent witness was associated in the raiding party. When the complainant did not lend support to the prosecution version, it would be quite reasonable and legitimate to insist upon independent corroboration of the evidence tendered by official witnesses, which is lacking. There was no independent search witness. 11. As emanates from the record, no independent witness was associated in the raiding party. When the complainant did not lend support to the prosecution version, it would be quite reasonable and legitimate to insist upon independent corroboration of the evidence tendered by official witnesses, which is lacking. There was no independent search witness. In re: Ram Parkash Arora (supra), it has been observed that "it must be remembered that both Joginder singh (referring to the complainant) and Dalbir Singh P.Ws. were interested and partisan witnesses. They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case, the Court may look for independent corroboration before convicting the person." It is deducible that in Ram Parkash Aroras case (supra), the complainant had supported the prosecution version, though herein undeniably even the complainant has not "buttressed the stance of prosecution. In the case of Ram Parkash Arora (supra), the Apex Court also observed that "Apart from what has been stated above, one cannot overlook the fact as to why the appellant demanded illegal gratification on February 15, 1968 after he had already submitted a report on February 12 by verifying at the spot that the connection be given and that the sanction had actually been accorded by the SDO on February 13, 1968. 12. To my mind, these observations are fully applicable to the instant case for the reason that as since noticed, he draft had already been delivered to the complainant and that being so, there was no occasion for the complainant to give the bride money to the accused-appellant for obtaining the same. It boils down that neither the element of demand, nor of acceptances of bride money is established by the prosecution. In re: G.V. Nanjundiah (supra), R.S. Sharma, contractor complainants testimony was not found trustworthy. It was in these circumstances held by the Apex Court that the factum of acceptance of bride is not properly established and the guilt of the accused is not proved. In re: Ram Avery (supra), the Appellate Court had held that "There is no corroboration of the testimony of the complainant, Amber Parsad regarding the deemed of bride by the respondent on 27.10.79. In re: Ram Avery (supra), the Appellate Court had held that "There is no corroboration of the testimony of the complainant, Amber Parsad regarding the deemed of bride by the respondent on 27.10.79. The evidence adduced by the prosecution that even on 5.11.79, the respondent demanded the bride from Ambar Parsad in the presence of other persons without taking any precaution is not convincing". It was held by Honble the Supreme Court that "The sum and substance of the above reasoning go to show that there is no acceptable and clinching evidence proving that there was a demand of bride and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour of Ambar Prasad in exercise of his official function." 13. In re: Suraj Mal (supra), the Apex Court has ruled that "Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt." Herein, if it is assumed that the gained currency notes were recovered from the accused- appellant, despite that in view of the above observations, it cannot prove the charge of the prosecution against the accused-appellant as there is no evidence to the effect that the accused-appellant voluntarily accepted the money. An identical view has been taken in Ram Kishore (supra). In re: Raghbir Singh (supra), the Apex Court has observed as under :- "The Officer functioning in the anti-corruption department must seriously endavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servant against whom a trap may have been laid. They should insist on observing this safeguard for the protection of public servant against whom a trap may have been laid. In the present case, the search witnesses were interested witnesses and therefore, their evidence with regard to the giving of bride and the recovery of the amount from the person of the accused was not relied upon." Herein, even the shadow witness was an official. The search witnesses being officials were interested in the success of the case. In view of the infirmities referred to hereinbefore, this appeal is accepted setting aside the impugned judgment/order of sentence, the accused-appellant in hereby acquired of the charged offences.