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2011 DIGILAW 1800 (PNJ)

Gurdarshan Singh v. State of Punjab

2011-09-23

L.N.MITTAL

body2011
JUDGMENT (1) CONVICT Gurdarshan Singh has filed the instant criminal appeal to challenge his conviction and sentence ordered by learned Special Judge, Bathinda vide judgment and order dated 17.12.2002, thereby convicting accused Gurdarshan Singh under Section 7 read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short, the 'Act') and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/- and in default thereof, to undergo further rigorous imprisonment for one month. (2) PROSECUTION case in brief is that complainant Malkiat Singh retired from Army. He was to receive his gratuity. He received a letter on 13.06.1997 from the office of Defence Pension Disbursement Officer (DPDO), Bathinda requiring the complainant to appear in the said office on 13.06.1997 itself at 10.00 a.m. However, since the letter was received on the same day. the complainant could not appear on that day. He went to the said office on 20.06.1997. The accused who was posted as dealing Clerk met the complainant and told that the documents brought by the complainant were incomplete. The complainant was required to bring complete record on 03.07.1997. Accordingly the complainant along with necessary documents went to the office of DPDO on 03.07.1997 and contacted the accused. The accused after perusing the documents demanded Rs.500/- as illegal gratification for clearing the case of complainant's gratuity. The deal was struck at Rs.400/-. The complainant promised to pay the same on the next day. On next day i.e. on 04.07.1997, the complainant met Harmander Singh and told him about the demand made by the accused. Harmander Singh advised the complainant to get the accused trapped. Accordingly, the complainant and Harmander Singh went to the office of Vigilance Bureau, Bathinda where they met Mehal Singh, Deputy Superintendent of Police (DSP). The complainant made statement to the DSP, which formed basis of the FIR. The complainant gave four currency notes of Rs.100/- denomination to DSP Mehal Singh who treated the same with phenolphthalein powder and returned the same to the complainant. Demonstration to show that solution of sodium carbonate turned pink on coming into contact with phenolphthalein powder was also given. Numbers of the currency notes were noted in memo. Harmander Singh was made shadow witness. Necessary instructions were given to the complainant and the shadow witness. Janardan Mahio, SDO, PWD (BandR) was joined in the raiding party. Demonstration to show that solution of sodium carbonate turned pink on coming into contact with phenolphthalein powder was also given. Numbers of the currency notes were noted in memo. Harmander Singh was made shadow witness. Necessary instructions were given to the complainant and the shadow witness. Janardan Mahio, SDO, PWD (BandR) was joined in the raiding party. The raiding party left for the office of the accused. The complainant and Harmander Singh were asked to go to the office of the accused whereas the remaining party stood at some distance. On demand of the accused, the complainant gave him the tainted currency notes. Necessary signal was flashed by the shadow witness to the remaining party who reached the spot. Both hands of the accused were washed in solution of sodium carbonate which turned light pink. It was sealed in a nip. On search of the accused, the tainted currency notes were recovered from left pocket of pants of the accused. Numbers of the recovered notes on comparison tallied with the numbers recorded in the memo. The notes were seized by the police. Pocket of pants of the accused was washed in separate solution of sodium carbonate which also turned light pink. It was sealed in separate nip and was seized by the police. Some record was taken into possession from Dhirendra Pratap, Senior Accounts Officer. Statements of witnesses were recorded. Rough site plan of the place of occurrence was prepared. The accused was arrested. Sanction for prosecution of the accused was obtained. Both the aforesaid solutions of sodium carbonate were found to contain sodium ion, carbonate ion and phenolphthalein as per report of Forensic Science Laboratory (FSL). On completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short, 'Cr.P.C.') was presented for prosecution of the accused for offences under Sections 7 and 13(2) of the Act. Charge under Section 7 read with Section 13(2) of the Act was framed against the accused. He pleaded not guilty and claimed trial. (3) TO prove the guilt of the accused, the prosecution examined 8 witnesses. (4) CONSTABLE Jiya Ram PW-1 and Head CONSTABLE Sukhbir Singh PW-3 being formal witnesses, tendered their affidavits in evidence. Dhirendra Pratap, Senior Accounts Officer, PW-2 stated that copies of the record, which are correct according to original brought by him, had been seized by the police from him. (4) CONSTABLE Jiya Ram PW-1 and Head CONSTABLE Sukhbir Singh PW-3 being formal witnesses, tendered their affidavits in evidence. Dhirendra Pratap, Senior Accounts Officer, PW-2 stated that copies of the record, which are correct according to original brought by him, had been seized by the police from him. He deposed that accused was present in the office on 04.07.1997. (5) HARMANDER Singh shadow witness PW-4, Janardan Mahio, SDO (member of the raiding party) PW-5, complainant Malkiat Singh PW-7 and Investigating Officer Mehal Singh, DSP PW-8 broadly stated according to the prosecution version. (6) SATYA Paul Singh, Assistant Accounts Officer, PW-6 proved sanction order for prosecution of the accused. The accused in his examination under Section 313, Cr.P.C. while admitting his posting as Clerk in the office of DPDO, Bathinda denied all the other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that the complainant had come to his office 3-4 times, but the accused could not clear the complainant's papers for gratuity as the same were incomplete. The papers were to be got cleared from Allahabad and were ultimately cleared from there and received on 21.07.1997 and thereafter the gratuity was paid to the complainant through account payee cheque on 28.07.1997 by Senior Accounts Officer Dhirendra Pratap. The complainant had false impression that the accused did not clear his papers for want of illegal gratification and for this reason, the complainant tried to push some currency notes in the pocket of the accused, but the accused immediately threw out the same which were picked up by officials of Vigilance Bureau. The accused was taken to office of DSP Vigilance, Bathinda, where his signatures were obtained. Other Clerks and Auditors were also sitting in the same room in which the accused had been sitting and there is no partition between his alleged room and the hall where other Auditors sit. This stage managed drama was witnessed by Auditors G. K. Negi and Harish Kumar. (7) IN defence, the accused examined Harish Kumar DW-1 and G. K. Negi DW-2. They broadly supported the aforesaid defence version. (8) LEARNED Special Judge, Bathinda vide impugned judgment and order dated 17.12.2002 convicted and sentenced the accused as already noticed in the opening part of this judgment. Feeling dissatisfied, the convict Gurdarshan Singh has preferred the instant criminal appeal. (7) IN defence, the accused examined Harish Kumar DW-1 and G. K. Negi DW-2. They broadly supported the aforesaid defence version. (8) LEARNED Special Judge, Bathinda vide impugned judgment and order dated 17.12.2002 convicted and sentenced the accused as already noticed in the opening part of this judgment. Feeling dissatisfied, the convict Gurdarshan Singh has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. (9) LEARNED counsel for the appellant contended that Dhirendra Pratap PW-2 has admitted in his cross-examination that payment was not released to the complainant due to some objection and after getting clearance from Allahabad, the payment was released It was also submitted that shadow witness Harmander Singh PW-4 has stated in his cross-examination that being Ex-Serviceman, he was also drawing pension from the office of the accused and had grievance against the accused because the accused had been sending him back on several occasions. This witness also stated that Satpal Singh Sidhu, Superintendent of Police (SP), Vigilance is distantly related to him. Harmander Singh and the complainant have also stated that they knew each other. It was thus argued that it was Harmander Singh who having grouse against the accused got him falsely implicated in this case, although the complainant himself was not going to the Vigilance office. It was pointed out that Harmander Singh was also related to Satpal Singh Sidhu, SP Vigilance and, therefore, the accused was got trapped by him. It was also pointed out that from the site plan, it emerges that the shadow witness from his location depicted in the site plan could not have seen the accused and the complainant as per their location depicted in the site plan. It was also pointed out that Janardan Mahio PW-5 admitted having appeared as witness in one more case of Vigilance raid and thus he was conveniently available witness. (10) ON the other hand, learned State counsel contended that demand and acceptance of the bribe by the accused is fully proved from the prosecution evidence. All the prosecution witnesses have supported the prosecution case. Tainted currency notes were recovered from the pocket of pants of the accused. (10) ON the other hand, learned State counsel contended that demand and acceptance of the bribe by the accused is fully proved from the prosecution evidence. All the prosecution witnesses have supported the prosecution case. Tainted currency notes were recovered from the pocket of pants of the accused. The said recovery is proved by statements of all the four material witnesses i.e. Harmander Singh, shadow witness PW-4, Janardan Mahio, PW-5 (member of the raiding party), complainant Malkiat Singh PW-7 and Investigating Officer Mehal Singh DSP PW-8. The said recovery is further established by hand wash and pocket wash of pants of the accused. It was also submitted that if Harmander Singh had any grouse against the accused, he himself could have lodged FIR against the accused. In this context, it was also submitted that complainant Malkiat Singh would not have deposed against the accused at the asking of Harmander Singh PW-4. It was also argued that there is no reason why Janardan Mahio PW-5 and DSP Mehal Singh PW-8 would implicate the accused in false case. I have carefully considered the rival contentions. Prosecution witnesses have supported the prosecution case. All the four material witnesses i.e. Harmander Singh, shadow witness PW-4, Janardan Mahio, PW- 5 (member of the raiding party), complainant Malkiat Singh PW-7 and Investigating Officer Mehal Singh DSP PW-8, have stood the test of cross-examination. Their veracity could not be impeached or shaken in cross- examination. It is manifest from their statements that the tainted currency notes were recovered from the pocket of pants of the accused. The defence version that the said notes were forcibly thrust into his pocket by the complainant and immediately the accused throw out the same, cannot be accepted in the face of reliable evidence led by the prosecution to demonstrate that the tainted currency notes were recovered from the pocket of pants of the accused. (11) THE appellant's counsel laid emphasis on the fact that the gratuity amount could not be released to the complainant on account of some objections. However, no record has been produced in evidence to depict that there was any legitimate objection, to the release of gratuity amount of the complainant. On the other hand, it is on the pretext of so-called objections that illegal gratification is demanded and the victim is forced to pay the same. However, no record has been produced in evidence to depict that there was any legitimate objection, to the release of gratuity amount of the complainant. On the other hand, it is on the pretext of so-called objections that illegal gratification is demanded and the victim is forced to pay the same. In fact, there is no document on record to depict that there was any objection, much less legitimate objection, to the release of gratuity amount to the complainant. On the other hand, immediately after the raid, the gratuity amount was released. It is own version of the accused that clearance was received from Allahabad on 21.07.1997. However, there is no evidence on record to depict as to when the alleged objections were removed after the raid. It thus becomes manifest that in fact there was no objection, much less legitimate objection, to the release of gratuity amount of the complainant and it was not being cleared just to obtain the illegal gratification. (12) THE contention that Harmander Singh shadow witness having grouse against the accused, got him falsely implicated because Harmander Singh also knew Satpal Singh Sidhu, SP, Vigilance, cannot be accepted. THEre is no reason why the complainant would have lodged false FIR against the accused at the instance of Harmander Singh. THEre is also no reason why Janardan Mahio PW-5 and Mehal Singh, DSP PW-8 would have acted at the instance of Harmander Singh. Moreover, if Harmander Singh were to implicate the accused in a false case, he could have himself done so when the accused was harassing Harmander Singh by sending him back on several occasions. Satpal Singh Sidhu, SP was not even in his office on the day of occurrence as stated by DSP Mehal Singh PW-8 in his cross-examination. Consequently, it cannot be said that the raid was conducted at the instance of Harmander Singh through good offices of Satpal Singh Sidhu, SP Vigilance. Harmander Singh rather stated that Satpal Singh Sidhu was related to him distantly. Moreover, Satpal Singh Sidhu did not come into picture at all in the instant case. Neither Harmander Singh PW-4 nor DSP Mehal Singh PW-8 were confronted with site plan to seek their explanation that the shadow witness Harmadner Singh could not have seen the accused and the complainant as per the locations depicted in the site plan. Moreover, Satpal Singh Sidhu did not come into picture at all in the instant case. Neither Harmander Singh PW-4 nor DSP Mehal Singh PW-8 were confronted with site plan to seek their explanation that the shadow witness Harmadner Singh could not have seen the accused and the complainant as per the locations depicted in the site plan. Without cross-examining the witnesses on this aspect, the contention raised by learned counsel for the appellant in this regard, cannot be accepted. In addition to it, Harmander Singh and other members of raiding party reached the spot and the tainted currency notes were recovered from the pocket of the pants of the accused. Consequently, even if Harmander Singh could not have seen the accused in his office before the raiding party went there, it would pale in to insignificance because Harmander Singh has not stated about the conversation that took place between the complainant and the accused. Consequently, even if accused and complainant were not visible to Harmander Singh, it would not make much difference to the prosecution case. Merely because Janardan Mahio PW- 5 appeared as witness in another Vigilance raid, it is not sufficient to label him as a conveniently available witness or a stock witness of police or Vigilance Bureau. On the other hand, DSP Mehal Singh PW-8 has categorically stated that he did not join Janardan Mahio in any other case. Janardan Mahio being SDO is a Gazetted Officer. He had no interest either in the success of the prosecution case or in conviction of the accused. He is completely independent witness. Even DSP Mehal Singh is completely independent witness having no malice or ill-will against the accused to implicate him in a false case. There is no reason to discard the statements of the prosecution witnesses. (13) FOR the reasons aforesaid, I find that that prosecution evidence is credible and sufficient enough to prove the guilt of the accused beyond reasonable doubt. Consequently impugned judgment of conviction is upheld. (14) AS regards quantum of sentence, sentence of imprisonment for one year is the minimum sentence under Section 13(2) of the Act. Consequently, sentence also does not warrant reduction. As a necessary consequence, I find no merit in the instant criminal appeal, which is accordingly dismissed. The accused-appellant who is on bail shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. Consequently, sentence also does not warrant reduction. As a necessary consequence, I find no merit in the instant criminal appeal, which is accordingly dismissed. The accused-appellant who is on bail shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. Appeal dismissed.