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2013 DIGILAW 1706 (PNJ)

Roop Chand v. State of Punjab

2013-12-18

K.C.PURI

body2013
JUDGMENT Mr. K.C. Puri, J.:- Appellant- Roop Chand has directed the present appeal against the judgment and order dated 13.8.2002 passed by Shri M.S.Chauhan, Special Judge, Amritsar vide which accused/appellant has been convicted under Sections 7 and 13(1) read with Section 13(2) of the Prevention of Corruption Act, (in short – the Act) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months under Section 7 of the Act and to further undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months under Section 13(2) of the Act. 2. The prosecution case in brief is that on 21/22-2-2000 documents of the passengers coming to India from Pakistan by Samjhauta Express were to be checked on different counters on the Attari railway station. Inspectors and Sub-Inspectors of the Police were on duty on different counters, whereas a constable or Head constable was deputed to assist them on each counter. The Sub Inspector/Asstt. Sub Inspector Incharge of the counter was responsible for the checking of documents of the passengers and after having found the documents to be correct to make an entry and put seal on the passport as also put the counter number and his own signatures and enter the details in his register maintained on the counter. At about 10.30p.m. DSP Simarjit Singh, and Inspector Anil Kumar were supervising the checking of the passengers on P.C.P. Attari Railway Immigration Centre, Counter No.9 was under the charge of the accused. Constable Amarbir Singh No.3084/Batala was also on duty with him. This counter was meant for checking of passports old immigration papers of Pakistani nationals. 3. It has been further alleged that one person carrying a blue coloured Indian Passport made two/three rounds near counter No.9. This conduct of said person raised suspicion in the mind of Simarjit Singh DSP. Accordingly DSP Simarjit Singh and Inspector Anil Kumar paid special attention to counter No.9. The person with blue coloured Indian Passport approached the counter No.9 and talked to the accused who demanded from the said person Rs.500/-. This conduct of said person raised suspicion in the mind of Simarjit Singh DSP. Accordingly DSP Simarjit Singh and Inspector Anil Kumar paid special attention to counter No.9. The person with blue coloured Indian Passport approached the counter No.9 and talked to the accused who demanded from the said person Rs.500/-. This amount was paid by the above said person to the accused in the form of Rs.500/- Pakistani currency note. There upon the accused put his seal of his counter on the passport and also put the date without putting his signatures and also did not enter the address of the person in the register meant for the purpose. Upon this, DSP Simarjit Singh entered the counter of the accused and asked the reasons for the aforesaid conduct but the accused could not give any satisfactory reply. In the meantime SI Amrik Singh who was managing counter No.6 also reached there as well as constable Amarbir Singh. Record of counter No.9 was examined by DSP Simarjit Singh during examinations of the record it was found that details of person with blue coloured passport are not entered in the register. DSP Simarjit Singh searched the person of the accused whereupon from the pocket of the pants worn by the accused five Pakistani currency notes in the denomination of Rs.100/- each bearing No.KAL 7451720, JAS 5385431, FAH 4369518, KAN 1682749, GAJ 0223583 were recovered. These currency notes were taken into possession. Site plan of the place of occurrence was prepared. Statements of the PWs were recorded. After completion of necessary investigation, challan against the accused was presented. 4. On appearance of the accused, copies of documents were supplied to the accused free of costs. Charge under Sections 13(1), 13(2) and Section 7 of the Act was framed against the accused to which he pleaded not guilty and claimed trial. 5. In order to prove its case, prosecution examined DSP Simarjit Singh (PW-1), HC Jagtar Masih (PW-2), Balwinder Singh (PW-3), DSP Karaj Singh ( DW-4), Harbhajan Singh (DW-5), ASI Amrik Singh (PW-6), Constable Kulbir Singh (PW-7), Kammal-Uddin (PW-8) and closed the prosecution evidence. 6. In his statement recorded under Section 313 Cr.P.C., the accused denied all the circumstances and pleaded his innocence and false implication. He has further stated that he had completed his duty at about 7/7.30p.m. and had handed over his stamps and register etc to MHC Jagtar Masih. 6. In his statement recorded under Section 313 Cr.P.C., the accused denied all the circumstances and pleaded his innocence and false implication. He has further stated that he had completed his duty at about 7/7.30p.m. and had handed over his stamps and register etc to MHC Jagtar Masih. According to him he was called by the staff on February 22, 2000 at about 6.30a.m., DSP Simarjit Singh in connivance with his loyal officials has planted false case upon him. Immigration of Kamal-Uddin Shah was not dealt with by him nor any money was taken from him by him. DSP Simarjit Singh was demanding Rs.2000/- per month from him as illegal gratification which he had refused to pay and that is why this false case has been planted upon him. The accused did not lead any evidence in defence. 7. The trial Court, after hearing the learned counsel for the parties convicted and sentenced the accused vide judgment and order dated 13.8.2002. 8. Feeling dissatisfied with the aforesaid judgment and order dated 13.8.2002, the present appeal has been preferred by the appellant/accused. 9. Learned counsel for the appellant has submitted that according to the case of the prosecution, the appellant while working as Sub Inspector at Attari Border has demanded and accepted the illegal gratification of Rs.500/- Pakistan currency note. It is submitted that to prove the offence under Section 7 and 13 (1) read with Section 13 (2) of the Act, the prosecution is required to prove the demand and acceptance of illegal gratification. Mere recovery of currency note is not enough to convict the appellant for the above said provision of law. Kammal-Uddin ( PW-8 ) was the person who according to the prosecution has paid the illegal gratification. The said witness has not supported the case of the prosecution regarding demand and acceptance of illegal gratification and as such the appellant is liable to be acquitted of all the charges. 10. I have carefully considered the said submission but do not find any force in that submission. 11. Kammal-Uddin (PW-8) was a foreign national. He wanted to save himself as according to the prosecution his transfer documents were not in order. So, in these circumstances, it was but natural that he would not support the case of the prosecution. 10. I have carefully considered the said submission but do not find any force in that submission. 11. Kammal-Uddin (PW-8) was a foreign national. He wanted to save himself as according to the prosecution his transfer documents were not in order. So, in these circumstances, it was but natural that he would not support the case of the prosecution. The demand and acceptance of illegal gratification in the present case would be presumed in view of Section 20 of the Act as the appellant was found in possession of 500/- rupees currency note of Pakistan. The appellant neither before the trial Court nor during the course of argument has denied or disputed about the recovery of the currency note. It is not an ordinary case of demand of illegal gratification. The appellant has not explained under what circumstances 500 rupees currency note of Pakistan was found in his possession. DSP Simarjit Singh (PW-1) has fully supported the case of the prosecution on all material particulars. There was no reason for him to falsely implicate the accusedappellant. 12. Learned counsel for the appellant has further submitted that according to the story of the prosecution Kammal-Uddin (PW-8) was found at counter No.9. He was of Indian origin and was not supposed to go to counter No.9. No entry was made by the appellant on his passport. There was no motive for the appellant to demand illegal gratification from Kammal-Uddin (PW-8). The appellant has proved on record that no entry has been made in the relevant register. The relevant register was handed over to the MHC concerned. 13. I have carefully considered the said submission but do not find any force in that submission. 14. Kammal-Uddin (PW-8) has in fact prepared a passport in the name of Habibul Rehman son of Ahmed Seikh which passport is on the case file. Kammal-Uddin (PW-8) has himself described himself as resident of Pakistan and as such he was supposed to be clear through counter No.9 meant for foreigners. So, there is no ambiguity in the prosecution version regarding appearance of Kammal-Uddin (PW-8) from counter No.9. The case of the prosecution itself is that for illegal gratification of Rs.500/- currency note of Pakistan the immigration of Kammal-Uddin (PW-8) has been cleared by the appellant. So, in these circumstances, there could not be entry in the record maintained by the appellant. 15. The case of the prosecution itself is that for illegal gratification of Rs.500/- currency note of Pakistan the immigration of Kammal-Uddin (PW-8) has been cleared by the appellant. So, in these circumstances, there could not be entry in the record maintained by the appellant. 15. Learned counsel for the appellant has further submitted that Kammal-Uddin (PW-8) has not been arrayed as accused although according to the prosecution he was having a forged passport in the name of Habibul Rehman son of Ahmed Seikh but he was made a prosecution witness, so the prosecution version is doubtful. 16. I have carefully considered the said submission but do not find any force in that submission. 17. No question was put to Kammal-Uddin ( PW-8 ) whether he has been arrayed as an accused or not. Even if, it is presumed that Kammal-Uddin ( PW-8 ) has not been arrayed as accused, in that case it does not affect the case of the prosecution regarding the present appellant. 18. Learned counsel for the appellant has further submitted that there was no motive for the appellant to demand illegal gratification from Kammal-Uddin ( PW-8 ). No entry was made by the appellant. So, he could not have demanded illegal gratification. 19. I have carefully considered the said submission but do not find any force in that submission. 20. The motive for the illegal gratification was to clear Kammal- Uddin (PW-8) of his immigration. The accused cleared him of the immigration and accepted Rs.500/- Pak currency note as illegal gratification. The appellant has failed to explain under what circumstances 500/- currency note of Pakistan was found in his possession. 21. The learned counsel for the appellant has further submitted that Anil Kumar told that Kammal-Uddin (PW-8) was apprehended but said Anil Kumar has not been examined. So, the prosecution story is doubtful. 22. I have carefully considered the said submission but do not find any force in that submission. 23. The criminal cases are decided on the quality of evidence and not on the quantity of evidence. Anil Kumar cannot be said to be a material witness and as such his non-examination is not fatal for the prosecution. 24. The learned counsel for the appellant has further submitted that there is a delay in lodging the FIR. 23. The criminal cases are decided on the quality of evidence and not on the quantity of evidence. Anil Kumar cannot be said to be a material witness and as such his non-examination is not fatal for the prosecution. 24. The learned counsel for the appellant has further submitted that there is a delay in lodging the FIR. It is submitted that DSP Simarjit Singh (PW-1) caught the appellant in morning at 10.30p.m. GRP post was at a distance of 50 yards from the said counter but ruka was received in GRP Police Post at 11.00a.m. on 22.2.2000. So, the delay is not explained. 25. I have carefully considered the said submission but do not find any force in that submission. 26. The accused/appellant in the present case was not an ordinary person to be charged under the provisions of prevention of corruption Act. The concerned officer has to verify all the facts prior to registration of the case against the appellant. So, in these circumstances, the delay stands fully explained. 27. The learned counsel for the appellant has further submitted that Constable Amarvir Singh, who was attached with the appellant neither joined as accused nor witness. He was the most material witness and he was equally liable with the accused-appellant. 28. I have carefully considered the said submission but do not find any force in that submission. 29. The currency note was fund in possession of accused-appellant and not constable Amarvir Singh. So, in these circumstances, he may not have been arrayed as accused by the prosecution. It is not the case of the prosecution that constable Amarvir Singh was present at the time of taking bribe by the accused-appellant. So, he cannot be arrayed as witness. 30. The learned counsel for the appellant has further submitted that ASI Amrik Singh (PW-6) has not stated that he saw any passenger giving money to the appellant. However, he was accompanied with DSP Simarjit Singh (PW-1) So, the prosecution story is doubtful. 31. I have carefully considered the said submission but do not find any force in that submission. 32. The case of the prosecution is that DSP Simarjit Singh (PW-1) found the accused talking with the passenger having Indian passport and that passenger paid the amount of Rs.500/- and the accused cleared his passport. 31. I have carefully considered the said submission but do not find any force in that submission. 32. The case of the prosecution is that DSP Simarjit Singh (PW-1) found the accused talking with the passenger having Indian passport and that passenger paid the amount of Rs.500/- and the accused cleared his passport. It is not the case of the accused that ASI Amrik Singh PW-6 was present at that time. 33. The learned counsel for the appellant has further submitted that on the uncorroborated version of DSP Simarjit Singh (PW-1), the accused cannot be convicted. It is further contended that the trial Court has wrongly raised a presumption under Section 20 of the Act. 34. I have carefully considered the said submission but do not find any force in that submission. 35. At the cost of repetition, the recovery from the accused is not of ordinary currency note of Indian origin but currency note of Pakistan origin. The appellant was posted for clearing the immigration at Attari Border Check Post. The currency note was recovered from him was of Pakistan origin, for which he has no explanation. So, in these circumstances, the presumption under Section 20 of the Act has been correctly drawn by the trial Court. 36. So far as the authorities cited by counsel for the appellant in support of his contention i.e. Banarsi Dass versus State of Haryana reported in, [2010(2) Law Herald (SC) 1441 : 2010(2) LAW HERALD (P&H) 1201 (SC)] : 2010 (2) RCR (Criminal) page 553, Union of India Thr. Inspector, CBI versus Purnandu Biswas reported in 2005 (4) RCR (Criminal) page 517 & Subash Parbat Sonvane versus State of Gujarat reported in 2003 (2) Crl.C.C.(Criminal) page 632 are concerned, the ratio of these authorities is that mere recovery of illegal gratification is not sufficient to prove the offence under Section 13(1)(d) & 13(2) of the Act. However, all these authorities are distinguishable to the facts of the present case in view of recovery of Rs.500/- currency note of Pakistan, Section 20 of the Act has been rightly applied in the facts of the present case. 37. However, all these authorities are distinguishable to the facts of the present case in view of recovery of Rs.500/- currency note of Pakistan, Section 20 of the Act has been rightly applied in the facts of the present case. 37. The learned trial Court has rightly relied upon the law laid down by Hon’ble Apex Court in authority Madhukar Bhaskar Rao Joshi vs State of Maharashtra reported in AIR 2001 Supreme Court page 147 for invoking the provisions of Section 20 of the Act, in view of peculiar circumstances. The illegal gratification recovered from the appellant was Pakistan currency note. No explanation has been given how the Pak currency note has came into his possession. 38. No other point has been raised or urged during the course of arguments by the learned counsel for the appellant. 39. In view of the above discussion, the appeal is without any merit and the same stands dismissed. 40. The accused is on bail. He be taken into custody to undergo the remaining part of the imprisonment awarded by the trial Court. 41. A copy of this judgment be sent to the trial Court for strict compliance.