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2014 DIGILAW 1665 (PNJ)

Anoop Chand v. State of Punjab

2014-12-02

K.C.PURI

body2014
JUDGMENT Mr. K.C. Puri, J.: - By this common judgment, I intend to dispose of Criminal Appeal No. S-1762 SB of 2005 titled as Anoop Chand versus State of Punjab and CWP No. 14097 of 2009 titled Anoop Chand versus State of Punjab and another as both these cases are out come of one occurrence. In the Civil Writ Petition petitioner prayed for issuance of writ in the nature of mandamus directing the respondents to release the pension and gratuity to the petitioner along with interest from the date of his retirement i.e. 30.4.2006 as the same has not been released because of pendency of the present criminal case. For convenience, facts are being taken from Criminal Appeal No. S 1762 SB of 2005 titled as Anoop Chand versus State of Punjab. 2. Challenge in this appeal is the judgment and order dated 16.9.2005 passed by Mrs.Archana Puri, Judge, Special Court, Amritsar, vide which the accused appellant has been convicted under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 ( hereinafter to be referred to as ‘the Act’ ), and sentenced to undergo imprisonment and fine as under:- u/s 7 of the Act To undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for one month. u/s 13(2) of the Act To undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for one month. 3. Both the sentences were, however, ordered to run concurrently. 4. The brief facts of the case, as enumerated from the record of the case are that on 25.09.1992 complainant Kamlesh Rani got recorded her statement to Inspector Ajit Singh that 5-6 years ago (from the date of occurrence) her husband was murdered by Terrorists and thereafter she along with her family shifted from Quadian to Amritsar. The Government had extended certain benefits to the terrorist effected families and even used to pay house rent to them. Even she used to get the house rent to the extent of Rs.900/- after every three months. She had received rent upto March 1992 and the remaining rent was to be received by her. The Government had extended certain benefits to the terrorist effected families and even used to pay house rent to them. Even she used to get the house rent to the extent of Rs.900/- after every three months. She had received rent upto March 1992 and the remaining rent was to be received by her. For receiving the same, she had gone to the Courts at Amritsar and met the concerned Clerk Anoop Chand - accused on 24.9.1992. Accused Anoop Chand demanded Rs.50/- as bribe to hand over the cheque and he also stated that her form after attestation has not been received from the Tehsildar. He stated that she should bring the form attested from office of Tehsildar along with bribe amount. On that very day, she had gone to the Tehsildar office and enquired about the form and got the same. She was not inclined to get her work done by paying illegal gratification, therefore, she reported the matter to the Vigilance Bureau, Amritsar. 5. It is further alleged that complainant handed over currency note of Rs.50/- bearing number JEF 854533 to the Trap Laying Officer. After noticing its number, said currency note was initialed by Inspector with his impression AS and after smearing the said currency note with phenolphthalein powder the same was handed back to the complainant after confirming that the complainant was not having any other money. She was then instructed to hand over the tainted money to the accused on his demand. Ranjit Singh was made shadow witness and was instructed to accompany the complainant to the office of the accused and to hear the conversation which took place between the complainant and the accused and was also directed to observe the transaction of handing over the bribe money. He was also directed to give pre-planned signal to the raiding party after the exchange of bribe amount. Nirmaljit Singh Senior Assistant of the office of District Education Officer (Primary), Amritsar was joined in the raiding party and he was introduced to the complainant and the shadow witness. Demonstration with regard to the effect of sodium carbonate with phenolphthalein was shown to the complainant and other witnesses. On the basis of said statement of the complainant, case FIR was registered. 6. It is further alleged that there was formation of the raiding party which proceeded to the office of Clerk Anoop Chand. Demonstration with regard to the effect of sodium carbonate with phenolphthalein was shown to the complainant and other witnesses. On the basis of said statement of the complainant, case FIR was registered. 6. It is further alleged that there was formation of the raiding party which proceeded to the office of Clerk Anoop Chand. Complainant and the shadow witness went to the office of the accused whereas the remaining police party remained outside. After sometime on getting preplanned signal from Ranjit Singh shadow witness, Inspector along with remaining members of the raiding party apprehended the accused Anop Chand from his arms. Thereafter solution of sodium carbonate was got prepared through Nirmaljit Singh Senior Assistant and the colour of the solution remained white. Thereafter Anoop chand was made to dip his both hands one after the other by the official witness and the colour of the solution turned pinkish. This pinkish solution was poured in a phial which was sealed with seal bearing impression ‘AS’ and was taken into possession. The accused was arrested. Rough site plan of the place of recovery was drawn. The case property was deposited with the MHC. Upon completion of the investigation challan was presented against the accused. 7. Copy of the documents were supplied to the accused free of cost as provided under Section 207 Cr.P.C. On finding a prima facie case against the accused charge under Sections 7 read with Section 13(2) of the Act, was framed against the accused, to which he pleaded not guilty and claimed trial. 8. In order to prove its case, prosecution examined PW-1 Kamlesh Rani, PW 2 Jagdish Singh, PW-3 Nirmaljit Singh, PW-4 Rajwant Singh , PW-5 Jatinder Pal Singh, PW-6 Gurmit Singh, PW-7 Ranjit Singh, PW-8 DSP Jagdish Mittar and closed the prosecution evidence. 9. In his statement recorded under Section 313 Cr.P.C. all the incriminating evidence was put to the accused, to which he pleaded his innocence and false implication. Accused examined Shukla Kumar as DW-1, Balwinder Kaur as DW-2 and Manmohan Singh as DW-3 in his defence. 10. Learned trial Court after appraisal of the evidence, convicted and sentenced the accused vide judgment and order dated 16.9.2005. 11. Feeling dissatisfied with the above-said judgment and order dated 16.9.2005, accused-appellant has directed the present appeal. 12. I have heard counsel for both the sides and have also gone through the record of the case. 13. 10. Learned trial Court after appraisal of the evidence, convicted and sentenced the accused vide judgment and order dated 16.9.2005. 11. Feeling dissatisfied with the above-said judgment and order dated 16.9.2005, accused-appellant has directed the present appeal. 12. I have heard counsel for both the sides and have also gone through the record of the case. 13. Learned counsel for the appellant has submitted that on the facts of the present case in order to prove the offences under the Act, the prosecution is required to prove the following ingredients of offence : - (i) that the Government servant has demanded illegal gratification ; (ii) Government servant has accepted the illegal gratification and (iii) the tainted amount was recovered from a Government servant. 14. Learned counsel for the appellant has submitted that the prosecution has utterly failed to prove all these ingredients of offence. It is submitted that to prove the demand and acceptance, the testimony of complainant as well as shadow witness are relevant. It is submitted that shadow witness has not supported the case of the prosecution at all. He has not deposed in the Court that demand of illegal gratification was made by the accused/appellant. The testimony of complainant also does not prove the demand of illegal gratification. Kamlesh Rani complainant has given altogether different story. This witness has stated that after visiting the office of Vigilance Bureau, she along with the person deputed by the police went to the office of accused-Anoop Chand but he was not present in his office. It was disclosed to her that he has gone to the office in Rani Ke Bag. She has further stated that one Hindu gentleman was present in the office and that person asked him to hand over the amount to him. However, she told to the person that amount was to be given to accused Anoop Chand. She has further stated that thereafter she along with shadow witness deputed by the Vigilance Department returned back to the office of Vigilance and told the Inspector that accused was not available in the office. Thereafter she went to the office of accused in Rani Ke Bag, Amritsar and the person who was deputed by Vigilance Inspector followed her to that office. The other police officer and Vigilance officer also reached that office. Thereafter she went to the office of accused in Rani Ke Bag, Amritsar and the person who was deputed by Vigilance Inspector followed her to that office. The other police officer and Vigilance officer also reached that office. The complainant has further stated that when she reached the office of the accused Anoop Chand, he was present there and on seeing her he came in the Verandha of the office. The complainant has further stated that Anoop Chand told the complainant to come and collect the cheque on Tuesday next and she paid the currency note of Rs.50/- to accused. It is submitted that complainant has nowhere stated that when she reached the office of accused at Rani Ke Bag, accused demanded the amount of illegal gratification. So, it is submitted that demand has not even been proved by the complainant herself. It is further submitted that during cross-examination complainant has stated that Vigilance official had explained to her the statement to be made before the Court. So, the complainant is a tutored witness and it is highly unsafe to rely upon her testimony, more-so when she is silent about demand and acceptance. It is further submitted that in further cross-examination she has stated that she left the spot five minutes after the arrival of Vigilance party. So, it is submitted that proceedings cannot be conducted in five minutes and story given by the prosecution that all the writing work was done in the office of Vigilance Department stands disproved from the testimony of the complainant. 15. It is further submitted that Nirmaljit Singh, Superintendent, the official witness has given a different story. He has not stated that complainant and shadow witness first of all went to the office of accused and thereafter they went to the office of accused and thereafter they went to the office of BDPO at Rani Ke Bag. 16. Counsel for the appellant has further submitted that case of the prosecution further remained unproved as even the investigating officer has not been examined. The valuable right of the appellant to cross-examine the investigating officer has been withheld by not examining him. The benefit of the same has to be given to the appellant. 17. The learned counsel for the appellant has further submitted that in a case under the Act, motive for the occurrence plays an important role. The valuable right of the appellant to cross-examine the investigating officer has been withheld by not examining him. The benefit of the same has to be given to the appellant. 17. The learned counsel for the appellant has further submitted that in a case under the Act, motive for the occurrence plays an important role. According to the prosecution version Rs.50/- were demanded by the accused/appellant for releasing the cheque of rent amounting to Rs.900/- per quarter payable to the victim of terrorist. It is submitted that prosecution has not produced a single witness to prove the fact that any cheque was issued. The accused has placed on record the evidence that there was no fund available with the Government to release for the payment of rent amount payable to the terrorist victims. It is submitted that once there was no amount available for payment of rent to terrorist victim how the appellant could make a demand of Rs.50/- for releasing the cheque. The cheque has not seen the day of light. So, the motive remains unproved. 18. The learned counsel for the appellant has further submitted that mere recovery of the amount is not sufficient to convict the appellant. The demand and acceptance has to be proved. To fortify his argument counsel for the appellant has relied upon the following authorities :- (1) Dharampal vs. State of Haryana reported in 1998(1) AICLR page 580 ; (2) M.R. Purushotham vs. State of Karnataka reported in [2014(4) Law Herald (SC) 3347] : 2014(4) RCR (Criminal) page 444 ; (3) A. Subair vs. State of Kerala reported in [2009(4) Law Herald (SC) 2420] : 2009(3) RCR (Criminal) page 370. 19. It is further submitted that Hon’ble the Apex Court in authority A. Subair’s case (supra) held that for a trivial amount of Rs.25/- the illegal gratification, the accused cannot be convicted when complainant is not examined. The presumption under Section 20 of the Act cannot be drawn in such small amount, more-so, when a demand and acceptance is not proved. 20. Learned State counsel has supported the judgment of the trial Court. It is submitted that there was no enmity of the accused/appellant with the complainant. Mere fact that shadow witness had turned hostile, is not a ground for acquittal. It is submitted that demand and acceptance stand proved. The test of phenolphthalein powder was proved positive. 20. Learned State counsel has supported the judgment of the trial Court. It is submitted that there was no enmity of the accused/appellant with the complainant. Mere fact that shadow witness had turned hostile, is not a ground for acquittal. It is submitted that demand and acceptance stand proved. The test of phenolphthalein powder was proved positive. So, the learned trial Court has rightly convicted the accused. 21. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. 22. It is settled law that prosecution has to prove the demand and acceptance of illegal gratification. The demand and acceptance can be proved by the complainant and shadow witness. The shadow witness has not supported the case of the prosecution and he had turned hostile. Now, the prosecution is left with the testimony of complainant alone to prove the demand and acceptance of illegal gratification. In case the statement of the complainant is scrutinized with care and caution, in that case, the factum of demand of illegal gratification is not proved. The complainant has stated that first of all she along with shadow witness went to the office of accused where the accused was not present. She has further stated that she again returned to the office of Vigilance Department and she has not obliged the persons staying there to hand over the illegal gratification. She has further stated that she again went to the office of accused at Rani Ke Bagh, which is different from earlier office and there accused took her in Verandha. She has not stated that demand of illegal gratification was made by the appellant but has simply stated that amount was paid to the accused with a promise to pay the cheque on coming to the office on Tuesday. 23. So, the factum of demand before payment of Rs.50/- to the appellant is not established from the statement of the complainant. So, the demand and acceptance in principle stands remained unproved. 24. Moreover, the testimony of the complainant regarding visit to the office of DDPO is not corroborated by Nirmaljit Singh (PW-3), Superintendent of District Education Officer. 25. The motive for the occurrence also remains unproved. So, the demand and acceptance in principle stands remained unproved. 24. Moreover, the testimony of the complainant regarding visit to the office of DDPO is not corroborated by Nirmaljit Singh (PW-3), Superintendent of District Education Officer. 25. The motive for the occurrence also remains unproved. Complainant would be the last person to hand over the amount of illegal gratification without receiving the cheque for the arrears of rent payable to terrorist victims. The cheque has not seen the day of light. On the other hand, the accused has placed on record the testimony of DW-1 and DW-2 wherein it is mentioned that no amount was lying with the Government in respect of payment of the amount of rent payable to terrorist victims, how the appellant can issue the cheque when there was no amount in the account. The stand taken by the appellant is that since the Government has not released funds for payment of rent and complainant was insisting for the payment of the same and on that account false case has been registered. 26. The argument advanced by Mr. Randhawa to the effect that appellant has been prejudiced by not examining the investigating officer carries weight and has to be accepted. Admittedly, investigating officer has not been examined and the appellant would have been seriously prejudiced by non-examining the investigation officer. The Hon’ble Apex Court in authority A. Subair’s case (supra) observed that trivial amount of Rs.25/- alleged to be accepted by the accused cannot be believed as complainant was not examined in that case. In the present case, although the complainant has been examined but she has not supported the case of prosecution regarding demand of illegal gratification of Rs.50/-. The amount involved as illegal gratification is also trivial in the present case, which is Rs.50/-. 27. The Hon’ble Apex Court in authority M.R.Purushotham’s case (supra) held that mere possession of recovery of currency notes from the accused without proof of demand will not bring the offence under Section 13(i)(d) of the Act. The accused was acquitted in that case. Similarly, this Court in authority Dharampal’s case (supra) also observed that without proving the demand and acceptance accused cannot be convicted for offences under the Act. 28. So, in view of the above discussion, the judgment of the trial Court do not sustain the test of legal scrutiny. The accused was acquitted in that case. Similarly, this Court in authority Dharampal’s case (supra) also observed that without proving the demand and acceptance accused cannot be convicted for offences under the Act. 28. So, in view of the above discussion, the judgment of the trial Court do not sustain the test of legal scrutiny. There are serious lacunas in the judgment of the trial Court. The case against the appellant is full of contradictions and is not proved in accordance with law. Consequently, the appeal is accepted. The judgment and order of the trial Court stands set aside and accused stands acquitted by giving him benefit of doubt. The fine if any be refunded in accordance with rules after the expiry of period of appeal/revision. CWP No. 14097 of 2009. 29. In the Criminal Appeal No. S 1762 SB of 2005 accused has been acquitted and as such the present petition stands accepted. The State is directed to release all the service benefits to the accused/appellant under Rules in case there is no other impediment. 30. A copy of this order be conveyed to the trial Court for strict compliance. ---------0.B.S.0------------ —————————