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2015 DIGILAW 210 (HP)

Ajit Singh Rana v. State of Himachal Pradesh

2015-03-20

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against judgment dated 9.9.2011 rendered by learned Special Judge, Hamirpur, HP in Corruption Case No. 05 of 2010, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Sections 7 & 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'Act' for convenience sake), was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of `5,000 under Section 7 of the Act and in default of payment of fine, to further undergo simple imprisonment for three months, and was further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 10,000/- under Section 13 (2 ) of the Act, in default of payment of fine, to undergo simple imprisonment for six months. 2. Case of the prosecution, in a nutshell, is that the complainant PW-1 Roshan Lal, was Pradhan of Jahu Agriculture Co-operative Society Limited, Jahu. He gave a written complaint to the Superintendent of Police, Hamirpur on 20.7.2009, whereby he reported that the accused, District Controller, Food, Civil Supplies & Consumer Affairs, Hamirpur was demanding Rs. 10,000/- from him. It is further alleged in the complaint that Devi Raj, Secretary-cum- Salesman of the Society had committed some irregularities and accused had stopped supply of grocery articles under the Public Distribution System. The General House of the Society, by passing a resolution had removed Secretary-cum-Salesman of the Society. The Society completed all codal formalities and requested the accused to restore supply of grocery articles to the Society under Public Distribution System. However, accused evaded to supply grocery articles on one pretext or the other. On 20.7.2009, the accused demanded bribe of Rs. 10,000/- from the complainant for restoring the supply of grocery articles to the Society under the Public Distribution System (for short ‘PDS’). Complainant did not want to give bribe to the accused, therefore, he gave written complaint to the Superintendent of Police, Hamirpur. Superintendent of Police, Hamirpur forwarded the complaint to the SHO Police Station Sadar, District Hamirpur in order to register a case under the Act and, on the basis of said complaint, FIR No. 234/09 dated 20.7.2009 was registered under Sections 7 & 13 (2) of the Act. 3. Superintendent of Police, Hamirpur forwarded the complaint to the SHO Police Station Sadar, District Hamirpur in order to register a case under the Act and, on the basis of said complaint, FIR No. 234/09 dated 20.7.2009 was registered under Sections 7 & 13 (2) of the Act. 3. Trap party was formed by the Superintendent of Police, Asif Jalal, and Shri Shiv Dev Singh Tehsildar, Kartar Chand, Superintendent of the Tehsil Office, Hamirpur and some other police officials were included in the trap party including the complainant. Superintendent of Police gave demonstration of mixing sodium carbonate and phenolphthalein separately in water and on mixing mixture of both the chemicals together, colour of the same turned pink. .Roshan Lal handed over ten currency notes in the denomination of `1000 each to the Superintendent of Police and numbers of the currency notices were noted down in a memo. These notes were treated with powder of phenolphthalein and were handed over to Roshan Lal, with a direction that he should hand over the same to the accused as and when the latter would demand bribe money. Witness Kartar Chand was also sent with Roshan Lal to the office of the accused. Superintendent of Police alongwith other members of the raiding party went to the parking place of Deputy Commissioner Office Hamirpur. After some time witness Kartar Chand gave signal to the trap party after the complainant gave bribe money to the accused. Superintendent of Police, Hamirpur alongwith other members of the trap party went to the office of accused. HC Ranjeet Singh and HC Kapil caught the accused from his hands. Superintendent of Police, Asif Jalal, disclosed his identity to the accused. Accused was made to wash his hands in a plate and the hand-wash water was mixed with sodium carbonate and colour of the same turned pink. The mixture was put in a nip and the same was sealed. On search, ten currency notes of denomination of `1000/- each were recovered from a file kept in the office of the accused. Numbers of the currency notes were tallied with the numbers already written in the memo Ext. PW1/C. All the ten currency notes were packed and sealed in an envelope. Case was investigated. Challan was put in the Court after completing all codal formalities. 4. Prosecution has examined as many as twelve witnesses to prove its case against the accused. Numbers of the currency notes were tallied with the numbers already written in the memo Ext. PW1/C. All the ten currency notes were packed and sealed in an envelope. Case was investigated. Challan was put in the Court after completing all codal formalities. 4. Prosecution has examined as many as twelve witnesses to prove its case against the accused. Accused was also examined under Section 313 of the Criminal Procedure Code. He denied the Prosecution case and claimed himself to be innocent. He has further taken a defence that an inquiry was conducted by him against the Society and complainant, Roshan Lal was president of the same. The complainant was held to have committed irregularity, therefore, the complainant in connivance with Partap Chand fabricated this false case against him. Learned trial Court convicted and sentenced the accused as noticed herein above. 5. Mr. Jagdish Vats and Mr. Anoop Chitkara have vehemently argued that the Prosecution has failed to prove its case against the accused. 6. Mr. Parmod Thakur has supported the judgment of conviction. 7. I have heard the learned counsel for the parties and also gone through the record carefully. 8. PW-1 Roshan Lal is the complainant. He has lodged a complaint with the Superintendent of Police Hamirpur vide Ext. PW1/A on 20.7.2009. According to him, accused had asked him to come to his office to get restored the supply of grocery articles and for renewal of licence. He has also deposed that even after renewal of licence, supply of articles under the PDS was not restored. The Superintendent of Police called the Executive Magistrate Shiv Dev Singh and Superintendent Kartar Chand to his office. Superintendent of Police gave demonstration. Memo of demonstration Ext. PW1/B was prepared. Currency notes of Rs. 10,000/- in the denomination of `1000 each were shown to the police party. Their numbers were noted down vide Ext. PW1/C. Currency notes were treated with some powder. Currency notes then were handed over to him vide Ext.PW1/C. Police party advised him that as and when he made payment to the accused he should come out and give signal to the raiding party. Kartar Chand was to accompany him to the office of accused. He alongwith Kartar Chand went to the office of accused, who was present there. He told him that the licence of the Society would be renewed and that he should make payment of Rs. Kartar Chand was to accompany him to the office of accused. He alongwith Kartar Chand went to the office of accused, who was present there. He told him that the licence of the Society would be renewed and that he should make payment of Rs. 10,000/- to him. Accused took money from him and counted the notes. He put the currency notes in an envelope and placed the envelope under folder of the file and file was kept in the drawer. Kartar Chand came out of the office and he gave a signal to the police party, as told to him. Police party came to the office of the accused and other police officials caught hold of the accused from his hands on each sides. SP was also present there. Then hand wash of the accused was collected in a plate. Colour of hand wash was natural. One separate mixture of sodium carbonate was prepared and mixed with the hand wash. Colour of hand wash turned pink. Memo of hand wash is Ext. PW1/D, which was signed by him and Kartar Chand and also Shiv Dev. Number of currency notes was tallied with Ext. PW1/C. They were found to be the same. Memo Ext. PW/1F was prepared. It was signed by him, Shiv Dev and Kartar Chand. In his cross-examination, he has admitted that licence of their Depot was renewed on 9.3.2009 on payment of official fee of Rs. 305/-. He had deposited the renewal fee. He did not remember that he had told the police that licence had been renewed earlier. Accused had telephoned him on 20.7.2009. He came with currency notes to his office. He had received call on his mobile telephone but did not remember the mobile number. He had changed the mobile telephone numbers subsequently. Tehsildar Shiv Dev and Kartar Chand reached the office of accused after about half an hour. He further deposed that prior to 20.7.2009, accused was demanding Rs. 10,000/-a number of times but they were offering only Rs. 5,000/-. He carried notes of Rs. 10,000/- to the office of SP on 20.7.2009. He further deposed that the office of District Controller, Food, Civil Supplies & Consumer Affairs is a double storeyed building. Apart from Kartar Chand, rest of the members of raiding party were outside the office of DFSC Hamirpur. 9. 5,000/-. He carried notes of Rs. 10,000/- to the office of SP on 20.7.2009. He further deposed that the office of District Controller, Food, Civil Supplies & Consumer Affairs is a double storeyed building. Apart from Kartar Chand, rest of the members of raiding party were outside the office of DFSC Hamirpur. 9. PW-2 Kartar Chand deposed that he was posted as Superintendent Grade II in Tehsil Office Hamirpur. He and Executive Magistrate, Shiv Dev Singh went to the office of SP Hamirpur. SP gave them demonstration. In his examination-in-Chief, he stated that he did not accompany the complainant to the office of DFSC Hamirpur. He denied the suggestion that in his presence, accused had put demand of Rs. 10,000/- to the complainant. He also denied that money was handed over to the accused by the complainant in his presence. He also denied that thereafter, he and complainant Roshan Lal went outside the office and gave signal to the raiding party. According to him, police party had entered the office of DFSC, thereafter he entered the room. He also deposed that when he entered the office of DFSC, office superintendent was also there, but he did not know his name. 10. PW-3 Shiv Dev Singh was also member of the raiding party. He also deposed the manner in which demonstration was given by Superintendent of Police. Superintendent of Police had directed him and Kartar Chand to accompany the complainant. They took position alongwith police party at about 4 pm. The complainant went to the upper floor of the building and then came out. He gave a signal and then all of them went to the office of the accused. He denied the suggestion that PW-2 Kartar Chand accompanied the complainant to the room of the accused. In his cross-examination, he has admitted that no signal was .given by him to the raiding party. 11. PW-4 is a formal witness. 12. PW-5 Pratap Singh has proved Ext. PW5/A, PW5/B, PW5/C, PW5/D and PW5/E. 13. PW-6 is a formal witness. 14. PW-7 is also a formal witness. 15. PW-8 Vijay Parkash deposed that on 20.7.2009, Dy.SP Rajesh Kumar deposited with him four sealed parcels sealed with seal ‘J’ i.e. Ext. P1-nip of demonstration, Ext. P2, Pint of hand wash, Ext. P13-envelope containing currency notes and Ext. PW1/Esample seal ‘J’, one sealed envelope alleged to contain file cover was also deposited with him. 15. PW-8 Vijay Parkash deposed that on 20.7.2009, Dy.SP Rajesh Kumar deposited with him four sealed parcels sealed with seal ‘J’ i.e. Ext. P1-nip of demonstration, Ext. P2, Pint of hand wash, Ext. P13-envelope containing currency notes and Ext. PW1/Esample seal ‘J’, one sealed envelope alleged to contain file cover was also deposited with him. On 4.3.2010, one sealed envelope Ext. P15 alleged to contain two packets of sodium carbonate and phenolphthalein powders Ext. P16 and Ext. P17 were received by him through dak from Asif Jalal, SP Hamirpur. He entered the aforesaid property in Register No. 19. On 24.7.2009 vide RC No. 91/09, he sent one pint Ext. P2 alongwith sample seal to the FSL Junga through Sunil Kumar for chemical examination. 16. PW-9 is a formal witness. 17. PW-10 ASI Praveen Kumar also deposed the manner in which raiding party was constituted. Demonstration was given by Superintendent of Police. He testified that SP Hamirpur asked complainant Roshan Lal to go to the office of accused and hand over currency notes on demand. Kartar Chand was also sent with Roshan Lal to represent as a member of the Society. Roshan Lal and Kartar Chand were directed that as and when bribe money is handed over to accused, one of them should give signal by scratching head to the raiding party. He also stated that when raiding party was entering the office, one person came out from the room of DFSC and Superintendent of Police asked him to disclose his identity and he told that his name was Onkar Chand working as Superintendent in the office of DFSC Hamirpur. In his cross-examination, he has admitted that Onkar Chand, Superintendent was present in the office throughout the proceedings. 18. PW-11 Asif Jalal deposed the manner in which he has given demonstration, after receipt of complaint from PW-1 Roshan Lal. Kartar Chand was sent with Roshan Lal to the office of accused to hand over currency notes. Kartar Chand was directed to give signal by rubbing head, after currency notes were handed over to accused. After some time, Kartar Chand gave signal by rubbing his head. He alongwith other members of raiding party went to the office of DFSC Hamirpur. 19. PW-12 Rajesh Kumar deposed that the Superintendent of Police Hamirpur had handed over case file to him, for further investigation. After some time, Kartar Chand gave signal by rubbing his head. He alongwith other members of raiding party went to the office of DFSC Hamirpur. 19. PW-12 Rajesh Kumar deposed that the Superintendent of Police Hamirpur had handed over case file to him, for further investigation. He recorded the statements of Kartar Chand, Shiv Dev Singh, ASI Praveen Kumar. 20. According to PW-1, accused had demanded a sum of `10,000/- for the supply of grocery articles and renewal of licence. He has admitted in his examination-in-chief that supply of articles under PDS was stopped by accused due to some irregularities. However, in his cross-examination, he has admitted that licence was already renewed on 9.3.2009 on payment of official fee of `305/-. In case, licence had already been renewed, there was no occasion for the accused to have demanded `10,000/-. PW-1, has categorically deposed that Kartar Chand accompanied him to the office of accused. Thereafter, he and Kartar Chand (sic. Kartar Singh) went to the office of the accused. Accused told that the licence would be renewed if he made payment of `10,000/-. However, in his cross-examination, he has admitted that Tehsildar Shiv Dev Singh and Kartar Chand reached the office of accused half an hour after him. Accused telephoned him on 20.7.2009 to come with currency notes. He received call of accused on mobile telephone but did not remember the mobile number. Version of the complainant that accused telephoned him to come with currency notes, can not be believed. He was supposed to remember the telephone number. .21. PW-2 Kartar Chand, in his examination-in-chief has denied that he had ever accompanied the complainant to the office of DFSC. He also denied that in his presence, accused raised demand of Rs. 10,000/- from the complainant. He also denied that money was handed over to accused by the complainant in his presence. He also denied that he and complainant Roshan Lal went outside the office and gave signal to the raiding party. According to him, police party entered office of DFSC and thereafter he entered his room. He denied that he and complainant gave any signal to the police party. PW-3 Shiv Dev Singh Tehsildar, has also deposed that complainant was not accompanied by Kartar Chand. Thus, he has also not supported the version of PW-1 Roshan Lal that Kartar Chand accompanied him to the room of DFSC, Hamirpur. He denied that he and complainant gave any signal to the police party. PW-3 Shiv Dev Singh Tehsildar, has also deposed that complainant was not accompanied by Kartar Chand. Thus, he has also not supported the version of PW-1 Roshan Lal that Kartar Chand accompanied him to the room of DFSC, Hamirpur. He has specifically denied in his examination-in-chief that Roshan Lal and Kartar Chand also accompanied him. He also deposed in his cross-examination that no signal was given by Kartar Chand to raiding party. 22. PW-9 ASI Praveen Kumar also deposed that Kartar Chand, witness was sent with Roshan Lal to represent as a member of the Society. Roshan Lal and Kartar Chand were directed as and when bribe money is handed over to accused, one of them should come out and give signal to the raiding party. He also admitted that when raiding party entered the office one person came out of room of DFSC. In his cross-examination, he has admitted that Onkar Chand, office Superintendent was present in the office throughout the proceedings. However Prosecution has not examined Onkar Chand though material witness. According to PW-1, he gave signal to the police. PW-3 Shiv Dev Singh has also admitted in his cross-examination that no signal was given by Kartar Chand to the raiding party. However, PW-11 Asif Jalal says that Kartar Chand gave signal by rubbing his head. 23. Thus, there are major contradictions as to who gave signal to the raiding party. Case of the prosecution has not at all been supported by shadow witness Kartar Chand, PW-2. PW-1 as noticed above, has admitted that supplies were stopped due to irregularity. Affairs of society were also investigated by the department. Licence of the Society was already renewed on 9.3.2009. Thus, there was no occasion for the accused to demand an amount of Rs. 10,000/-. Shri Onkar Chand, Superintendent who was present throughout the proceedings as per statement of PW-10, ASI Praveen Kumar, was not examined though a material witness. 24. Mr. Parmod Thakur submitted that a sum of `10,000/- was recovered from the possession of the accused. 25. Their Lordships of Hon’ble Supreme Court in Ganga Kumar Srivastava vs. State of Bihar 2005 (6) SCC 211 have held as under:- “20. 24. Mr. Parmod Thakur submitted that a sum of `10,000/- was recovered from the possession of the accused. 25. Their Lordships of Hon’ble Supreme Court in Ganga Kumar Srivastava vs. State of Bihar 2005 (6) SCC 211 have held as under:- “20. We must not forget that in a trap case the duty of the officer to prove the allegations made against a government officer for taking bribe is serious, and therefore, the officers functioning in the vigilance department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt whether or not any money was paid to be public servant by way of bribe. It is also the duty of the officers in the vigilance department to safeguard for the protection of public servants against whom a trap case may have been laid.” 26. Their Lordships of Hon’ble Supreme Court in Narendra Champakali Trivedi vs. State of Gujarat, AIR 2012 SC 2263 have held that recovery of tainted money from the accused by itself is not sufficient to record conviction. Their Lordships have held as under:- “12. At the outset, we may state that the recovery part has gone totally unchallenged. Though a feeble attempt was made before the High Court and also before us, yet a perusal of the evidence and the test carried out go a long way to show that the amount was recovered from the possession of the accused- appellants. It is the settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction unless there is evidence that bribe had been demanded or money was paid voluntarily as a bribe. Thus, the only issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. Be it noted, in the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the accused. This has been so stated in T. Subramanian v. The State of Tamil Nadu.” 27. It is also clear from Ext. D1, Ext. D2 dated 15.6.2007 and Ext. D4 dated 11.7.2002 that there were complaints against the complainant and these were looked into by the accused. This has been so stated in T. Subramanian v. The State of Tamil Nadu.” 27. It is also clear from Ext. D1, Ext. D2 dated 15.6.2007 and Ext. D4 dated 11.7.2002 that there were complaints against the complainant and these were looked into by the accused. Thus, filing of the complaint by the complainant against accused was mala fide and to settle scores with him. 28. Accordingly, the appeal is allowed. Judgment of conviction passed by learned Special Judge, Hamirpur, HP in Corruption Case No. 05 of 2010 on 9.9.2011, is set aside. Sentence of the accused was suspended on 15.10.2011. The bail bonds are discharged. Pending applications, if any, are also disposed of.