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2010 DIGILAW 3201 (PNJ)

Wazir Chand v. State of Punjab

2010-12-01

M.JEYAPAUL

body2010
JUDGMENT Mr. M. Jeyapaul, J.: - The first accused Wazir Chand, who was convicted for offence under Section 7 and Section 13(2) of the Prevention of Corruption Act, 1988 and was sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for a further period of six months, has preferred the present appeal. 2. The case of the prosecution as unfolded by the witnesses examined on its side is as follows:- (a) Gurdev Singh, the complainant herein (PW-2) served as Sub Divisional Officer in SYL Division Ghanauli, District Ropar. He retired from service on 31.01.1992. While in service on 22.08.1990 he forwarded the account of his Sub Division to the Head office alongwith with the vouchers. The Divisional Officer dispatched a letter to him stating that two vouchers for a sum of Rs.2,46,959/- were not received alongwith the accounts. Therefore his pensionary benefits including gratuity were withheld by the department. (b) On 15.01.1995 PW-2 approached the accused Wazir Chand and requested him to transfer the amount lying in their account. The first accused Wazir Chand informed PW-2 that the vouchers were traced out but he (PW-2) should move a fresh application in writing to do the needful. The first accused Wazir Chand also made a demand of Rs.15,000/- as bribe to do the job. The deal was struck at Rs.5000/-. (c) On 10.02.1995 PW-2 came down to the office of DSP Vigilance, Ropar and gave a statement Ex.PD/1. Amrik Singh, DSP, PW-8 associated Balwinder Singh, PW- 3, who was working as Junior Assistant in the Department of Food & Supplies Ropar. PW-2 produced 10 currency notes of the denomination of Rs.500/-. Phenolphthalein test was demonstrated to PW-2 and PW-3 by Amrik Singh, DSP, PW-8. After treating the currency notes with Phenolphthalein powder, PW-8 handed over the same to PW-2. Hari Singh Saini, PW-6 and other police officials also joined the raiding party. PW-3 was instructed to be a shadow witness. (d) PW-2 and PW-3 went inside the office of the accused. When the rest of the raiding party waited outside, PW-3 was instructed to give a signal to the police party. The first accused namely Wazir Chand and the second accused Jarnail Singh were found present in the Chamber. PW-3 was instructed to be a shadow witness. (d) PW-2 and PW-3 went inside the office of the accused. When the rest of the raiding party waited outside, PW-3 was instructed to give a signal to the police party. The first accused namely Wazir Chand and the second accused Jarnail Singh were found present in the Chamber. PW-2 informed PW-8 that the first accused Wazir Chand having accepted a sum of Rs.5000/- passed on the same to the second accused Jarnail Singh, who put the same in his right pocket of coat. (e) Jagjit Singh, XEN of Irrigation Department, Sangrur, (PW-1) was summoned to the room . Sodium carbonate solution was prepared. Each one of the accused was separately directed to dip their fingers. The colour of the solution turned pink. The tainted currency notes were recovered from the pocket of the second accused Jarnail Singh. The numbers of the tainted currency notes were compared with the numbers noted down in the memo Ex.PM. It was found that the numbers found in the currency notes tallied. After effecting the recovery of the tainted currency notes and the register which contained the transfer entries, both the accused were arrested. Amrik Singh, DSP, PW-8 having completed investigation after receipt of the chemical analysis report from the Director of Forensic Science Laboratory filed final report against both the accused for offences under Section 7 and 13(2) of the Prevention of Corruption Act, 1988. 3. The trial Court having adverted to the evidence of PW-1, PW-2, PW-3 and the other witnesses examined, found that the prosecution miserably failed to establish that the second accused committed an offence under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. But having found that the prosecution has established its case beyond reasonable doubt that the first accused Wazir Chand has committed an offence punishable under Section 7 and Section 13(2) of the Prevention of Corruption Act convicted and sentenced him as stated supra. 4. The Court heard the submissions made on either side. 5. PW-2 Gurdev Singh is the complainant in this case. He has deposed before the trial Court that he approached the first accused Wazir Chand, who was serving as Accountant in his department in connection with the missing of two vouchers, which were dispatched by him during the service period. 4. The Court heard the submissions made on either side. 5. PW-2 Gurdev Singh is the complainant in this case. He has deposed before the trial Court that he approached the first accused Wazir Chand, who was serving as Accountant in his department in connection with the missing of two vouchers, which were dispatched by him during the service period. He made a request to both the accused when he met them on 15.01.1995 to make a transfer of the amount lying in the various accounts as he had already dispatched the vouchers. The accused informed PW-2 that the vouchers had been traced out but he should apply in writing for transferring the amount lying in various accounts. After making an application in writing PW-2 again approached the accused persons on 09.02.1995. The accused informed him that they would make the transfer entry only when 10% of the amount to be transferred was paid to them. Expressing his inability PW-2 went back. Again on 10.02.1995 the accused made a demand of Rs.15,000/- as bribe to execute the work, but ultimately the amount to be given as bribe was settled at Rs.5000/-. As PW-2 did not want to pay the said amount as bribe, he approached the office of Vigilance and Anti Corruption. He also speaks about the demonstration of Phenolphthalein test by PW-8. Thereafter he proceeded alongwith PW-3 to the office of the accused and handed over a sum of Rs.5000/- to the first accused Wazir Chand who passed on the same to the second accused Jarnail Singh. PW-3 gave a signal to the raiding party. PW-8 alongwith other police officials entered in the chamber of the first accused. He also speaks to the change of colour when both the accused dipped their fingers, as directed by PW-8. He also deposed that the recovery was made in his presence by PW-8. 6. During the course of cross-examination PW-2, who is the star witness in this case, has completely given a go-by to the demand of bribe made by the accused on 10.02.1995. PW-2 is very emphatic that no demand of money was made by the accused on 10.02.1995. He has gone a step further and deposed in the cross-examination that he never stated before the Investigating Officer that the accused demanded a sum of Rs.15,000/- and the bribe amount was settled at Rs.5000/- on 10.02.1995. 7. PW-2 is very emphatic that no demand of money was made by the accused on 10.02.1995. He has gone a step further and deposed in the cross-examination that he never stated before the Investigating Officer that the accused demanded a sum of Rs.15,000/- and the bribe amount was settled at Rs.5000/- on 10.02.1995. 7. PW-3 is a shadow witness, associated by PW-8 for the purpose of trapping the accused in this case. He has deposed before the trial Court in a very natural way that by the time he entered into the cabin of the first accused, neither the first accused nor the second accused was present and therefore they had to come out of the chamber and take their seats outside. It was only PW-2 who entered into the chamber of the first accused when the accused entered into the chamber and he had to wait outside the same. He has deposed that he actually did not know what in fact transpired inside the chamber of the second accused. 8. The prosecution has laid a foundation on the strength of the original version of PW-2 that a demand was made on 09.02.1995 but PW-2 had to bargain for payment of lesser amount of Rs.5000/- as bribe on 10.02.1995. Unfortunately he has completely given up the original version during the course of cross-examination. PW-3 the shadow witness has also not spoken about the demand allegedly made on 10.02.1995. 9. True it is that the prosecution could establish that there was a recovery of the amount of Rs.5000/- parted with by PW-2 to the accused. The prosecution is bound to establish that there was a demand of bribe made by the accused and thereafter the accused accepted the bribe. But the prosecution miserably failed to prove that there was actually a demand of bribe of Rs.5,000/- and thereafter it was finally settled for a sum of Rs.5000/-. Mere possession of the amount by the accused and the recovery of the same by the Investigating Officer would not establish the case of the prosecution that there was in fact a demand of bribe by the accused, which culminated in acceptance of the bribe by the accused. 10. This vital aspect which is writ large in the cross-examination of PW-2 was completely lost sight by the trial Court. 10. This vital aspect which is writ large in the cross-examination of PW-2 was completely lost sight by the trial Court. Consequently the trial Court has committed an error in coming to the conclusion that the demand of bribe of Rs.5000/- made by the accused was established by the prosecution. 11. In view of the facts and circumstances, I find that the prosecution has failed to bring home the guilt under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 to the first accused. Therefore the first accused is entitled to acquittal. Accordingly the first accused, who is the appellant herein is acquitted of the above charge framed against him. The bail bond executed by him shall stand annulled. Consequently the appeal is allowed setting aside the judgment of conviction recorded and sentence imposed on the appellant-accused. --------------------