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2010 DIGILAW 3256 (PNJ)

Gurdial Singh v. C. B. I.

2010-12-06

A.N.JINDAL

body2010
JUDGMENT A.N.JINDAL, J: 1. The accused-appellant Gurdial Singh (herein referred as 'the accused') was trapped when receiving Rs.500/-as illegal gratification for releasing the amount of money-orders. Consequently, he was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/-each under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for brevity 'the Act'). 2. The accused was posted as Post Master at Extra Departmental Branch, Post Office Boparai, Distt. Kapurthala. He had received two money-orders relating to Sukhdev Singh and placed a condition upon him that the money-orders could be released only on the proof of his identity by some witness. On 15.07.1999, complainant Sukhdev Singh (herein referred as 'the complainant') visited post-office in order to inquire about the receipt of money-orders of Rs.8,000/-. The accused confirmed, having received the money-orders. However, he demanded a sum of Rs.500/-as well as the identifier. Thereafter, on 16.07.1999, the complainant alongwith Sucha Singh contacted DSP Gurmeet Singh, Vigilance Bureau, Kapurthala and lodged the complaint against the accused. The latter recorded his statement Ex.PW1/1 and completed the trap formalities. On the receipt of the ruqa, FIR Ex.PW5/1 was registered at police station. Complainant handed over five currency notes Ex.P1 to Ex.P5 in the denomination of Rs.100/-each to the Investigating Officer who demonstrated about the reaction of phenolphthalein powder with the solution of the sodium carbonate. He also prepared a memo regarding the number of currency notes (tainted money). Sucha Singh (PW2) was appointed as a shadow witness and Krishan Kumar, Junior Assistant, in the office of Deputy Commissioner, Kapurthala, was jointed as official witness. The complainant was instructed by the Investigating Officer to hand over the tainted money to the accused on his demand and Sucha Singh was directed to signal them as soon as the money was accepted by the accused. 3. As planned, the complainant alongwith tainted money went to the accused, who after making the payment of Rs.8,000/-to the complainant came out in the street and received Rs.500/-on account of illegal gratification from the complainant. On receipt of the signal from Sucha Singh, DSP Gurmeet Singh raided the premises. He got washed the hands of the accused in a solution of sodium carbonate whereupon the colour of solution turned pink which was poured in a nip and sealed with the seal bearing impression 'GS'. On receipt of the signal from Sucha Singh, DSP Gurmeet Singh raided the premises. He got washed the hands of the accused in a solution of sodium carbonate whereupon the colour of solution turned pink which was poured in a nip and sealed with the seal bearing impression 'GS'. Memo with regard to hand wash Ex.PW1/5 was prepared. From the personal search of the accused, tainted currency notes were recovered which were taken into possession vide memo Ex.PW1/7, the pocket wash of the pant was also got conducted and the colour of the pocket also became pink. The Investigating Officer prepared the site plan, recorded the statements of witnesses and on receipt of the report of Forensic Science Laboratory, challan was presented against him. 4. He was charged under Sections 7 & 13(1)(d) read with Section 13(2) of the Act to which he pleaded not guilty and opted to contest. 5. In order to substantiate the charges, the prosecution examined nine witnesses in all. Besides, some documentary evidence was also produced. 6. In his statement under Section 313 Cr.P.C., the accused did not dispute the fact that he was working as Post Master at Extra Departmental Branch. While denying the other allegations, he stated that on 14.07.1999, complainant had come to inquire about the receipt of money-orders whereupon he was directed to bring some witness for his identification as he hailed from different village. On the next day, Sukhdev Singh again came without bringing any witness and the accused refused to disburse the amount of money-orders without any witness for identification. However, on 16.07.1999, the complainant brought a witness. Thereafter, the complainant after receiving a sum of Rs.8,000/-went out and after a few minutes, they came and gave him Rs.500/-for opening the saving bank account. When he was still in the process of taking out the account opening form, the raiding party entered the office and he was apprehended. 7. As regards Sucha Singh, he stated that since he had opposed his father Mohinder Singh in the election, therefore, Sucha Singh, being an inimical witness, became party to implicate him in the case. In defence, the accused examined Shamsher Singh (DW1), who had contested the election against Mohinder Singh, father of Sucha Singh as well as Jagdish Singh (DW4) who had deposed regarding the enmity between the accused and Sucha Singh on account of political rivalry. In defence, the accused examined Shamsher Singh (DW1), who had contested the election against Mohinder Singh, father of Sucha Singh as well as Jagdish Singh (DW4) who had deposed regarding the enmity between the accused and Sucha Singh on account of political rivalry. Balkar Singh (DW2) has also deposed about the enmity between the accused and Sukhdev Singh regarding the purchase of postal envelop in the post-office. Jaswant Singh (DW3) has deposed that he had over-heard the conversation between Sukhdev Singh and Sucha Singh with regard to their plan to falsely implicate the accused in corruption case. He also heard that they would hand over the amount of Rs.500/-on the pretext of opening the account in the name of Sukhdev Singh. 8. The trial Court, after scrutinizing the evidence while ignoring the defence version and believing the prosecution version, convicted and sentenced the accused accordingly. 9. Arguments heard. Record perused. 10. Mr. K.S. Dadwal, Advocate, counsel for the appellant has given much stress on the statement of complainant Sukhdev Singh (PW1), who has accepted the defence version stating that he had paid Rs.500/-for opening the account in his name and it was not the bribe money. Since the complainant had felt irritated on account of returning him from the post-office for bringing the witness for identification so that the amount of money-orders could be released, therefore, he falsely implicated the accused in this case. He has urged that the presumption under Section 20 of the Act stands rebutted. 11. To the contrary, Mr.Ajay Kaushik, counsel for the respondent-CBI has stated that the defence version is an afterthought. This plea never saw the light of the day before it was put to the witnesses. The tainted money was not paid to the accused inside the post-office, therefore, the plea that the complainant after receiving the money went outside and paid the same for opening the account is quite improbable. Actually the said money was paid to him, being illegal, gratification as demanded by him earlier. The attending circumstances also reveal that there was no hitch in payment of the money for opening the account in the office itself. The gratification, as agreed between the parties inside the office was not received by him for the reasons that Vipin Kumar was inspecting the post office record, therefore, he followed the complainant and received the money while going out. The gratification, as agreed between the parties inside the office was not received by him for the reasons that Vipin Kumar was inspecting the post office record, therefore, he followed the complainant and received the money while going out. However, the complainant appears to have sided with the accused and in order to give a twist to the prosecution version, he had stated that the money was meant for opening the account. He has further stressed that on appreciation of the entire statement of complainant Sukhdev Singh (PW1), the testimonies of the other witnesses and the records, only conclusion could be drawn is that the complainant, who was the master mind behind the trap, set the law in motion; managed to bring the CBI officers at the place of occurrence and facilitated them to conduct the raid upon the accused. Lateron for the ulterior motives, he has given a twist to his statement. 12. Having pondered over the rival contentions as well as on appreciation of the prosecution evidence and the defence version, this Court could make no exception to the opinion as expressed by the trial Court for sound reasons. 13. Admittedly, the accused was working as Post Master in Extra Departmental Branch at Post-Office Boparai. There is also no denying a fact that two money-orders Ex.PW1/3 and Ex.PW1/4 worth Rs.4,000/-each were received in the post-office, payable to Sukhdev Singh (PW1). The accused has been putting off Sukhdev Singh (PW1) to bring the witnesses for his identification so that the amount of money-orders could be released to him. There is also no dispute that the accused received a sum of Rs.500/-. 14. The question to be determined is whether the said money received by the accused was for opening the account or was on account of illegal gratification. Admittedly, no form for opening the account was filled and no pass book was issued. Sukhdev Singh (PW1) has deposed before the police that the accused had demanded a sum of Rs.500/-on account of illegal gratification for the purpose of disbursement of the amount of money-orders. The accused has also not disputed the factum of recovery of Rs.500/-i.e. tainted currency notes Ex.P1 to Ex.P5 form his possession. The story with regard to raid by DSP Gurmeet Singh has also not been disputed in as much as the witnesses have duly established this fact. The accused has also not disputed the factum of recovery of Rs.500/-i.e. tainted currency notes Ex.P1 to Ex.P5 form his possession. The story with regard to raid by DSP Gurmeet Singh has also not been disputed in as much as the witnesses have duly established this fact. The accused has also not denied about the hand wash and pocket wash as a result of which the colour of solution of sodium carbonate changed to pink. The prosecution has also proved the recovery of Rs.500/-from the accused. The prosecution in order to prove the demand of Rs.500/-on account of illegal gratification by the accused has examined Sukhdev Singh (PW1) and Sucha Singh (PW2). Actually Sukhdev Singh (PW1) has reiterated the entire version but only given a twist to the story saying that he had handed over the amount of Rs.500/-to Gurdial Singh for opening the account in the bank. However, he has admitted during the cross-examination that before the arrest of the accused, DSP had recorded his statement in which he had disclosed that the accused had told him that amount of money-orders could not be paid so easily and he had demanded Rs.500/-as bribe for making the said payment. He further admits that he had stated in his statement Ex.PW1/1 that he had requested the accused to reduce the amount as he was a poor man but the accused did not agree and stuck to his demand of Rs.500/-. He had also stated in his statement that after promising to come to him on the next day with the bribe money and the witness, he came back. He has further repeated about the demand and payment of bribe money when he was cross-examined by the Addl. Public Prosecutor for the State. Mere fact that the complainant gave a twist to the story saying that he had paid this amount of Rs.500/-to the accused for opening the account in his name, is totally false and he appears to have stated so for the ulterior motives. However, Sucha Singh (PW2), the other star witness to the case, has stood like a rock while disclosing that the complainant had told him that the accused had been demanding Rs.500/-for releasing the amount of money-orders. The complainant had handed over Rs.500/-on account of illegal gratification on demand, made by the accused and the latter had put the same in his pocket. The complainant had handed over Rs.500/-on account of illegal gratification on demand, made by the accused and the latter had put the same in his pocket. He has narrated the entire prosecution version in minute details. Much need not be commented upon as the accused has admitted having received Rs.500/-but the case set up by him is that he had received the same for opening the account of Sukhdev Singh (PW1) in the post-office. 15. Before I discuss the probability of the defence version, I need to comment upon the credibility of Sucha Singh (PW2). His reliability and trustworthiness has been challenged by the accused on the ground that father of Sucha Singh had contested the election in 1983 wherein the accused had supported the other party, therefore Sucha Singh was annoyed with him. According to the defence version, the elections took place in the year 1983 whereas the present case was registered against the accused in 1999. The ground of alleged enmity is not such which may provide a serious motive and close nexus to implicate the accused in a false case and such a small point of annoyance cannot stand to survive after such a long time i.e. sixteen years. As a matter of fact, it was merely a question of vote. The accused was neither an active participant in the election nor an election representative, therefore, such small ire was hardly sufficient to invite Sucha Singh (PW2) to go to the extent of trapping the accused in a corruption case against the accused. This negligible enmity cannot be said to be a cause for Sucha Singh to depose against the accused when there is other evidence of Krishan Kumar (PW3) and DSP Gurmeet Singh (PW9) that the accused was caught red-handed and an amount of Rs.500/-was recovered from him. Furthermore, Sukhdev Singh (PW5) has also not denied if the accused had not demanded money and he had not paid him the said amount. 16. Now the other question which remains to be determined in the instant case is “whether the defence, as set up by the accused, is probable and whether the money received by the accused was for opening the account or as an illegal gratification ?” Having examined the entire evidence on the record, the answer would be positively against the accused. Now the other question which remains to be determined in the instant case is “whether the defence, as set up by the accused, is probable and whether the money received by the accused was for opening the account or as an illegal gratification ?” Having examined the entire evidence on the record, the answer would be positively against the accused. (i) Since the complainant Sukhdev Singh (PW1) was already annoyed with the accused for not releasing his money-orders amount then why he will invite another trouble by opening the account with the accused. Complainant has stated that he has been making repeated visits to post-office but the amount of money-orders was not released to him as he had not brought the witnesses for the purpose of identification, therefore, he went frustrated. (ii) Secondly, had there been any talk with regard to the opening of the account then it would have happened in the presence of Vipin Kumar, who alongwith some other persons was inspecting the record but none of them has been examined to prove if the complainant wanted to open the account in the post office. (iii) There was no hitch in opening the account in the presence of Vipin Kumar. In the event, the amount was handed over to the accused on the pretext of opening an account then there was no difficulty for the accused to issue a receipt in the premises of the post office itself and there was no hitch for the complainant to ask the accused in the premises of the post-office to receive a sum of Rs.500/-and issue him the receipt for opening the account. (iv) No such account opening form, as filled by the accused, was produced before the Investigating Officer to prove his defence. (v) The accused though took this belated defence at the time of evidence yet the accused did not unfold this alleged high-handedness on the part of the complainant before the CBI or the postal authorities, who were to grant sanction for prosecution. (vi) Had there been any intention of Sukhdev Singh to open the account then he could direct the accused to deduct Rs.500/-outrightly from the money-orders amount but it was not so done. (vi) Had there been any intention of Sukhdev Singh to open the account then he could direct the accused to deduct Rs.500/-outrightly from the money-orders amount but it was not so done. (vii) Further the most important fact which belies the defence version is that the amount of Rs.500/-for account opening was paid not in the presence of Vipin Kumar but after coming out of the office i.e. in the corner of the street. Sukhdev Singh (PW1) admits that after receiving the amount of money-orders from the accused he alongwith Sucha Singh and accused Gurdial Singh came out of his house in the street where the complainant paid Rs.500/-to accused and so is admitted by the accused in his statement under Section 313 Cr.P.C. The accused put the currency notes in the right pocket. Similarly Sucha Singh (PW2) has stated as under:- “After giving the money to Sukhdev Singh, the accused asked for his Rs.500/-. I and Sukhdev Singh came out asking the accused to listen to us. He also came out with us . On the corner of the street, adjoining the house of the accused, Sukhdev Singh handed over Rs.500/-i.e. tainted currency notes, to the accused. He put those currency notes in the right pocket of the pant. I gave signal to the trap party and the accused was apprehended.” 17. Thus, from the aforesaid consistent testimonies of two witnesses, it is very much clear that Sukhdev Singh (PW1) did not offer to open the account in the post-office itself and the amount was paid to the accused in the street, while coming out of the post-office. As a matter of fact, if we read the statements of Sucha Singh (PW2) as well as Sukhdev Singh (PW1), it transpires that at the time when they went to post-office then some checking was going on by the postal authorities, therefore, on the direction of the accused they waited for sometime. Thereafter, Gurdial Singh released the amount. However, he could not receive the illegal gratification in the presence of that official, therefore, he came out where he received the money. Thereafter, Gurdial Singh released the amount. However, he could not receive the illegal gratification in the presence of that official, therefore, he came out where he received the money. Since an official of the postal department was present and carrying out the checking, as such, it was not possible for the accused to deduct any amount from the amount of money-orders, therefore, the occasion arose for him to come out of the office and receive the money from the complainant. 18. Though Sukhdev Singh (PW1) having joined hands with the accused, has given a twist to his statement yet from the evidence of Sucha Singh (PW2) and Krishan Kumar (PW3) so also from the statement of DSP Gurmeet Singh (PW9), the recovery of the tainted money stands duly established beyond reasonable doubt and the onus to prove, that the accused did not demand the bribe money so recovered, was upon him but he has failed to shift the onus. Similar observations were made in case M.Narisinga Rao vs. State of Andhra Pardesh 2000 (1) RCR (Criminal) 95 (Supreme Court) wherein it was observed that once the bribe money is recovered from the possession of the accused, the burden shifts upon him to explain the circumstances to prove his innocence. 19. As regards the testimony of Shamsher Singh (DW1), he has stated only that he had contested the election against Mohinder Singh, father of Sucha Singh (PW2) but he has not stated any other incident which occurred between the year 1983 till the date of registration of the case which may indicate the subsistence of enmity between the accused Sucha Singh on account of political rivalry. Balkar Singh (DW2) has deposed that Sukhdev Singh (PW1) had an altercation with the accused over the purchase of two postal envelops and he is a witness to the said altercation. The testimony of this witness is also of no consequence. Jaswant Singh (DW3) has deposed to the effect that he heard the conversation between the complainant Sukhdev Singh (PW1) and Sucha Singh (PW2) with regard to their plan to falsely implicate the accused in a corruption case but the testimony of this witness also is not worth reliance as he being the co-villager could be instrumented to go to any extent to save the accused. His version appears to be an afterthought. His version appears to be an afterthought. No question was put to any of the witnesses if Jaswant Singh (DW3) was a witness to the conspiracy allegedly hatched by them. He never informed the accused with regard to their plan. He had not reported about the same to any of the public authorities regarding such conspiracy. Rather it disproves the defence version that the money received by the accused was on account of opening the saving bank account. Jagdish Singh (DW4), though has stated about the political rivalry yet during the cross-examination he has stated that after 1983 Mohinder Singh had again contested the subsequent elections against Harbhajan Singh but he has not stated that the accused had cast vote against Mohinder Singh. Thus, no reliance could be placed to discard the prosecution version. 20. No other argument has been raised. 21. Resultantly, while agreeing with the findings, returned by the trial Court, the appeal, being devoid of any merit, is dismissed. Appeal dismissed.