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2011 DIGILAW 2103 (PNJ)

Kashmiri Lal v. State of Punjab

2011-11-23

GURDEV SINGH

body2011
JUDGMENT Mr. Gurdev Singh, J. (Oral): - The present appeal has been preferred by Kashmiri Lal and Hemant Kumar-appellants/accused, against the judgment dated 5.6.2003 passed by the Special Judge, Patiala, vide which they were convicted for the offence under Section 12 of the Prevention of Corruption Act, 1988 (for brevity—’the Act’) and were sentenced to undergo rigorous imprisonment for a period of 1-1/2 years and to a fine of Rs.2,000/- each and in default thereof to further undergo rigorous imprisonment for a period of three months. 2. The prosecution story, in brief, is that one FIR No. 37 of 1998 under Sections 467, 468, 471, 218, 212 and 120-B IPC and Section 13 (1) (d) read with Section 13 (2) of the Act had been registered against the Modern Agro Chemical Industries Private Limited and others, which was being investigated by the S.P. Vigilance Bureau, Patiala. Notice dated 18.10.1999 and 27.10.1999 Exs. P.24 and P.25, were issued to Kashmiri Lal/accused and one Om Parkash, respectively, for producing the stock register, cash register and bill books of their firms, in the office of Vigilance Bureau, Patiala on 21.10.1999 and 28.10.1999 respectively. Those notices were duly served by Kuldeep Singh, ASI complainant (PW-2) upon the said persons. In pursuance of the first notice, records were not produced and the same necessitated issuance of the second notice. In pursuance of the second notice, both the accused came to that office and met the complainant on 28.10.1999. When the complainant asked them about the record, which was required in connection with the investigation of the said FIR, they replied that they have not brought the record and asked him to resolve the matter otherwise. He told them that the record was required in connection with the investigation of the case. Thereafter on 29.10.1999, both the accused, accompanied by Dilbag Ram, Munshi of V.K. Fertilizers, came to him and he asked them about the record. Only two registers and some bills were shown to him by Kashmiri Lal and he told them that it is not the complete record. Both the accused told him that they were not having any other record and that they would pay Rs.10,000/- as illegal gratification for not asking them to produce any other record. When he told the accused that they were bound to produce the whole record, they agreed to give him illegal gratification to his satisfaction. Both the accused told him that they were not having any other record and that they would pay Rs.10,000/- as illegal gratification for not asking them to produce any other record. When he told the accused that they were bound to produce the whole record, they agreed to give him illegal gratification to his satisfaction. Inspite of the fact that he told them that he was not interested in any such bribe, they kept on pressuring him to receive the same. About this illegal act of the accused, the complainant gave written application Ex. PC to the SP., who marked the same to R.S. Dhillon, DSP (PW-4), vide his endorsement Ex. PC/1 for registration of the case, laying down of a trap and to investigate the matter. The DSP, after recording his police proceedings on that application, sent the same to the Police Station, and on the basis thereof formal FIR Ex. PC/2 was recorded against the accused under Sections 8, 9 and 12 of the Act. The complainant also mentioned in that application that the accused would make an attempt to give him bribe in the post lunch session. The DSP constituted a raiding party by joining Subhash Chander Gupta, SDO, Public Health Department, Patiala (PW-3). He took search of the complainant, which resulted in recovery of Rs.935/- and those currency notes were taken into possession, vide memo Ex. PD. Thereafter, the complainant was made to sit on his chair and Subhash Chander Gupta occupied the chair on his left side. After some time, the accused came to that place and occupied the bench lying on the right side of the complainant. Kashmiri Lal offered bribe money to him but he refused to accept the same and thereafter that accused put that money in the right side drawer of his table. On receiving the signal from the complainant, through window of the office, the DSP came to the spot and apprehended both the accused. Subhash Chander Gupta was asked to take search of the drawer, which resulted in the recovery of twenty currency notes of the denomination of Rs.500/- each, and the same were taken into possession, vide memo Ex. PE. Personal search of the accused was taken and recovery memos to that effect was prepared. Subhash Chander Gupta was asked to take search of the drawer, which resulted in the recovery of twenty currency notes of the denomination of Rs.500/- each, and the same were taken into possession, vide memo Ex. PE. Personal search of the accused was taken and recovery memos to that effect was prepared. Two registers and one file, containing the bills, were found lying on the table of the complainant and those were taken into possession, vide memo Ex. PE. The DSP prepared the rough site plan Ex. P1 of the place of the recovery. On 29.10.1999, the complainant produced the notices Ex. P.24 and P.25 before the DSP and those were taken into possession vide memo Ex. PH. After completion of the investigation, challan was put in before the Special Judge, Patiala, for the trial of the accused. 3. On appearance of the accused, in the court, copies of all the documents sent alongwith the police report and relied upon by the prosecution were supplied to them, as per the mandatory requirements of Section 207 Cr.P.C.. From the perusal of those documents and after hearing PP for the State and the accused in person, the learned Special Judge found sufficient grounds for presuming that the accused committed offences punishable under Sections 7 and 12 of the Act. They were charged accordingly, to which they pleaded not guilty and claimed trial. 4. To bring home the guilt of the accused, the prosecution examined Kanwaljit Kaur (PW-1), Kuldeep Singh, ASI (PW-2), Subhash Chander Gupta, SDO (PW-3) and Ranjit Singh Dhillon, SP (PW-4). 5. After the close of the prosecution evidence, the accused were examined by the Special Judge and their statements were recorded under Section 313 of the Cr.P.C. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They admitted registration of FIR No. 37 of 1998 and the fact that they were called to the office of the Vigilance Bureau, Patiala. They denied the other circumstances and pleaded their innocence and false implication. It was stated by Kashmiri Lal/accused that he and his co-accused are facing their trial in FIR No. 37 dated 30.4.1998, though there are no allegations or evidence against them. They denied the other circumstances and pleaded their innocence and false implication. It was stated by Kashmiri Lal/accused that he and his co-accused are facing their trial in FIR No. 37 dated 30.4.1998, though there are no allegations or evidence against them. In connection of that case, Kuldip Singh, ASI visited their houses and demanded Rs.2 lakhs for giving them a clean chit in the said FIR, but they refused to oblige him. On the second visit, that ASI was accompanied by two constables, who searched their houses and took Rs.20,000/- from the house of Hemant Kumar and that amount was subsequently planted upon them. He also stated that Hemant Kumar is his real nephew. This plea of Kashmiri Lal was adopted by the other accused. 6. The accused were called upon to enter on their defence and they examined Har Gopal (DW-1), Lal Singh (DW-2) and tendered copy of the challan form marked D1 in their defence evidence. 7. After going through the evidence, so produced and hearing PP for the State and the learned defence counsel for the accused, the Special Judge convicted and sentenced the accused, as aforesaid. 8. I have heard learned counsel for both the sides. 9. It has been submitted by the learned counsel for the appellant/accused that a false case was made against the accused after they refused to accept the demand of Kuldeep Singh, ASI to pay Rs.2 lakhs for giving a clean chit to them in FIR No. 37 of 1998 and not only the notices were fabricated but false witness; namely, Subhash Chander Gupta was introduced in the picture to prove the case. The complainant was not authorized to investigate the case and, as such, could not have issued notices to the accused. According to that ASI, the notices were issued by him at the instance of SP, Vigilance Bureau and, as such, the SP became a material witness but he was never examined by the prosecution, for which an adverse inference is to be drawn against him. It stands proved on the record that there are a number of offices in between the office of the Vigilance Bureau and the office of the Public Health, still it was Subhash Chander Gupta from the office of the Public Health, who was joined in the investigation. It stands proved on the record that there are a number of offices in between the office of the Vigilance Bureau and the office of the Public Health, still it was Subhash Chander Gupta from the office of the Public Health, who was joined in the investigation. In fact, he was a convenient witness and no document has been proved on record by the prosecution for proving that he was deputed by his superiors to join investigation, though according to the Investigating Officer, it was the Executive Engineer of that witness, who had deputed him as such. From the defence evidence, it stands proved that the complainant, accompanied by the two constables, went to the houses of the accused and when they failed to fulfill his demand of Rs.2 lakhs, he brought Rs.20,000/- from that place and that money itself has been planted in order to involve them in a false case. That defence evidence disproves the prosecution case and the accused are entitled to acquittal. 10. While refuting the arguments of the learned defence counsel, it has been submitted by the learned State counsel that from the statements of the prosecution witnesses, the guilt of these accused stands proved beyond reasonable doubt. Subhash Chander Gupta was an independent witness, having no animus against the accused, who has fully supported the prosecution version. There is nothing on record to disbelieve the statements of the official witnesses. The complainant, being the Reader of the SP, was competent to issue the notices under his signatures, on the instructions of that SP, who was investigating the offence under FIR 37 of 1998. From the evidence produced by the prosecution, it stands proved that the accused made an offer to give an illegal gratification of Rs.10,000/- to the complainant. There is no ground for setting aside the well reasoned conviction and sentence recorded by the Special Judge. 11. It was not disputed at the time of arguments that neither the present accused nor their firms were named as accused in FIR No. 37 of 1998 and that fact is also clear from the copy of the challan form submitted under Section 173 of Cr.P.C. Mark D.1. 11. It was not disputed at the time of arguments that neither the present accused nor their firms were named as accused in FIR No. 37 of 1998 and that fact is also clear from the copy of the challan form submitted under Section 173 of Cr.P.C. Mark D.1. However, in the course of investigation of that FIR, the Investigating Officer was competent to summon the record from the accused, to whom the fertilizer is said to have been supplied by the Modern Agro Chemical Private Limited against which that FIR was registered. Admittedly, the investigation was being conducted by the SP, Vigilance Bureau and only he was competent to issue the summons for production of the documents under Section 91 of the Cr.P.C. If he had authorized Kuldeep Singh, ASI, complainant, to issue the summons on his behalf, he could have entered the witness box to prove that fact but he was never examined by the prosecution, for which an adverse inference is to be drawn. 12. The summons/notices so issued by the complainant were proved on record as Exs. P.24 and P.25. It is pertinent to note that the first notice Ex. P.24 dated 18.10.1999 was issued to Kashmiri Lal, as proprietor of V.K. Fertilizer and as per the endorsement made thereon the same was received by that accused. The second notice Ex. P.25 was issued to one Om Parkash as proprietor of Fertilizer Sales Corporation, Lambra and not to any of these two accused. No evidence has been produced by the prosecution that any of these accused had anything to do with the Fertilizer Sales Corporation, Lambra. It is pertinent to note that as per the endorsement on that notice, the same was received by one Puneet and not by any of the accused; which totally falsifies the statement of the complainant that he had gone to the accused with the notices and had asked them to produce the record. 13. As per the prosecution version, it was Subhash Chander Gupta (PW-3), who was associated in the raiding party as an independent official witness. 13. As per the prosecution version, it was Subhash Chander Gupta (PW-3), who was associated in the raiding party as an independent official witness. Though there is nothing on record to substantiate the contentions of the learned defence counsel that he was a convenient witness to the police, yet it is a fact that no such document has been proved on record by the prosecution for proving that he was deputed by his Executive Engineer to join the raiding party. During the examination-in-chief, it was stated by Ranjit Singh Dhillon, DSP (PW-4) that this witness was already present in his office in connection with some work when he was joined in the raiding party. However, during his cross-examination, he stated that he had given the summons to one Ranjit Singh, Constable for calling that SDO. Two stories put forward by the prosecution cannot be reconciled. If it was the Executive Engineer who had deputed this SDO to join the raiding party, then how this Investigating Officer issued the summons to a constable for summoning him. The other two witnesses have made contradictory statements as to the vehicle on which this witness was brought from his office. According to Kuldeep Singh, ASI (PW-2), he was brought on a vehicle which was not a gypsy, whereas, according to that witness himself, it was a gypsy in which he was brought from his office. 14. It is in the light of the above discussion that the evidence produced by the prosecution and the accused in their defence is to be scrutinized and it is to be seen whether it is the case of the prosecution which is truthful or the plea of the accused. 15. It was stated by Har Gopal (DW-1) that on 26.10.1999, one SHO, alongwith two constables, came to the house of Hemant Kumaraccused and he, alongwith his neighbour, was called to that place. It was told by the SHO that he had come in connection with the investigation of a case and thereafter a sum of Rs.20,000/- was recovered from the house of that accused regarding which a memo was prepared and his signatures were obtained thereon. According to Lal Singh (DW-2), he was present when the house of Kashmiri Lal was searched on 26.10.1999 at 7 p.m. by the SHO and two constables but nothing was recovered. According to Lal Singh (DW-2), he was present when the house of Kashmiri Lal was searched on 26.10.1999 at 7 p.m. by the SHO and two constables but nothing was recovered. According to these witnesses, both the accused were taken away by the police with them. 16. It is now well settled that the witnesses examined by the accused in defence command the same respect as the witnesses examined by the prosecution and the same rule of evidence regarding scrutiny applies to both the set of witnesses. The statements of these defence witnesses examined by the accused were tested by the prosecution on the touchstone of cross-examination. Nothing could be elicited during their cross-examination, on the basis of which it may be held that these witnesses have not come out with truthful facts or that they have an animus to depose in favour of the accused. It is not a case where the accused have tried to prove the said facts for the first time, while producing this defence evidence. It was their case from the very beginning. They put those facts to the prosecution witnesses when they were examined in the court and then they stated those facts during their statements recorded under Section 313 Cr.P.C. After thorough scrutiny, this Court has come to the conclusion that both of them are truthful witnesses. 17. On the other hand, during cross-examination of the witnesses examined by the prosecution, such like contradictions occurred that it becomes very much clear that the version put forward by the accused is correct. 18. Kuldeep Singh, ASI (PW-2) in his application Ex. PC specifically stated that instead of producing the requisite register and the bill books, the accused offered him a bribe of Rs.10,000/-, which clearly implies that the accused had not left any record with him. Strangely, two registers and one file containing the bills and the challans etc. were found lying on his table by the Investigating Officer, which were taken into possession, vide memo Ex. PG. It is not the version of the complainant that the accused had asked him that they would be coming after lunch also and strangely he mentioned in his application that they would make another attempt to bribe him in the post lunch session. Some other material contradictions have also crept in during the statements of the recovery witnesses, which make their statements unreliable. Some other material contradictions have also crept in during the statements of the recovery witnesses, which make their statements unreliable. They are even discrepant about the accused who placed the currency notes in the drawer of the complainant. According to the complainant himself and the official witness, those were placed by Kashmiri Lal accused, but according to the Investigating Officer, they were placed by both the accused. The accused would not have dared to bribe the police official in the presence of Subhash Chander Gupta, who was just a stranger to them. It is not the statement of the former two witnesses that after coming to the room, the accused had occupied the bench, which was lying on the left side of the complainant, whereas according to the Investigating Officer, first they occupied the bench and then they offered bribe money to the complainant. According to the complainant and the Investigating Officer, no other person was present in the office of that room, whereas according to Subhash Chander Gupta, 2-3 officials were present in that room. Another important aspect of the case is about the omission of an entry in the DDR of the Vigilance Bureau regarding the visit of Subhash Chander Gupta, SDO to that office on that particular date. The Investigating Officer tried to offer an explanation by deposing that no entry regarding the gazetted officer is required to be made and that Subhash Chander Gupta was a gazetted officer. No such distinction can be made regarding the gazetted or non-gazetted officers, as every person who enters the office of Vigilance Bureau, his name is supposed to be recorded in the DDR. That makes the presence of that witness at the time of raid highly improbable. That circumstance coupled with the above said contradictions shows that the prosecution witnesses have not come with a truthful version in the court. 19. In view of the above discussion, I conclude that a false case was made against the accused by the police officials to counter their act of raiding the houses of the accused and bringing them along Rs.20,000/- from that place, three days before the alleged occurrence. It is a case where more reliance is to be placed upon the evidence produced in the defence in preference to the evidence produced by the prosecution. 20. In the result, the appeal is hereby accepted. It is a case where more reliance is to be placed upon the evidence produced in the defence in preference to the evidence produced by the prosecution. 20. In the result, the appeal is hereby accepted. The conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded to them. 21. In view of what has been stated above, I think it expedient in the interest of justice, that an inquiry be conducted under Section 340 Cr.P.C. and a complaint be filed against the above said witnesses for making a false case against the accused. The same be done by the Special Judge, Patiala, expeditiously. 22. Records be returned to the trial court forthwith. --------------