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Himachal Pradesh High Court · body

2017 DIGILAW 1429 (HP)

Tek Chand Gupta v. State of H. P.

2017-12-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the accused/convict against the judgment rendered by the learned Special Judge, Kullu, District Kullu, in C.C.No.3 of 2013, whereupon, he returned findings of conviction against the accused/convict in respect of charges framed under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act and consequently sentenced him to undergo four years simple imprisonment and to pay a fine of Rs. 20,000/- and in default, was sentenced to undergo simple imprisonment for six months. Yet State of Himachal Pradesh has not filed appeal herebefore for assailing the aforesaid findings of acquittal recorded upon the accused. 2. Briefly stated the case of the prosecution is that in the year 2009, accused was posted as Exectuve Engineer, HPPWD Division, Kaza and an information was received in the police Station of SV & ACB, Kullu that he was coming from Kaza via Rohtang in official vehicle No. HP-41-0338, being driven by driver Parmeshwar with money. On receipt of said information, the then Dy.S.P. Amar Nath PW-14 constituted a team comprising Sub Inspector Rajinder Kumar and SI Tara Chand, Paras Ram, Rakesh Lal and Mahender Singh and proceeded from Police Station in official vehicle being driven by Baldev vide DDR Ext. PW14/A. At about 2:30 PM, two vehicles bearing No. HP-41-0532 and HP 41-0338 came from Rohtang side and were stoppe for checking. PW-14 deputed Inspector Prem Singh to inspect vehicle No. HP-41-0532 and he himself inspected vehicle No. HP-41-0338. On checking the vehicle No. HP41.0338 by PW-14 , on the front seats, driver Parmeshwar Lal and one Chet Ram were found sitting and on the rear seats of the said vehicle, accused along with his wife namely, Asha Gupta and one lady namely Cheering Dolker were found. One bag was found lying with accused near his feet. On checking the said bag, two small bags, Ext. P-2 and Ext. P-7 were found inside the said bag. One small bag was having chain and chain was locked with a lock, Ext. P-3 and the another small bag was also having chain, but was not locked. PW-14 asked for the keys from the accused, but he failed to produce the same. Thereafter chain was broken by the IO and on checking the said, pink and green colour bag Ext. P-2 currency notes, i.e. 368 of the denomination of Rs. P-3 and the another small bag was also having chain, but was not locked. PW-14 asked for the keys from the accused, but he failed to produce the same. Thereafter chain was broken by the IO and on checking the said, pink and green colour bag Ext. P-2 currency notes, i.e. 368 of the denomination of Rs. 1,000/- and 54 of the denomination of Rs. 500/-, total amounting to Rs. 3,95,000 were found. On opening and checking of the another violet colur bag, Ext. P-7, 507 notes of the denomination of Rs. 1,000/- and 84 notes of the denomination of Rs. 500/-, total amounting to Rs. 5,49,000 were found therein. Thus, total amount of Rs. 9,44,000 was recovered from both the small bags, Ext. P-2 and Ext. P-7. One diary containing telephone numbers was also found in the bag. The other articles recovered from the bag were seized by the IO vide memo Ext. PW13/A and then handed over to driver, Parmeshwar Lal. The recovered currency notes were put in two different parcels, Ext. P-1 and Ext. P-8, in the same manner as recovered from each bag and parcels were sealed with seal “B” were affixed on the another parcel and thereafter, both these parcels were taken into possession vide memo Ext. PW13/B, in the presence of witnesses PW13 and PW-7. The memo Ext. PW13/B was got signed from accused as well as from witnesses. Sample seal Ext. PW7/A was taken separately and seal, after use, was handed over to witness Sudarshan Kumar. PW-14 prepared ruqua Ext. PW14/C and sent the same through HHC Paras Ram to Police Station Vigilance for the registration of FIR, on the basis of which FIR Ext.PW1/A was registered. On 16.10.2009, Driver Parmeshwar handed over the documents of the vehicle bearing No. HP 41-0388 vide RC Ext. PW2/B, Log Book Ext. PW2/C to the IO which were taken into possession vide memo Ext. PW2/A. IP also took into possession copy of posting and promotion order, Ext. PW3/A of accused from Sr. Assistant, vide memo Ext. PW3/B, in the presence of Om Prakash. On 13.6.2012, IO took into possession appointment order Ext. PW4/A of accused. PW-14 prepared the spot map Ext. PW14/D and also recorded the statements of witnesses correctly as per their version including the statements of Chaman Lal Ext. PW3/A of accused from Sr. Assistant, vide memo Ext. PW3/B, in the presence of Om Prakash. On 13.6.2012, IO took into possession appointment order Ext. PW4/A of accused. PW-14 prepared the spot map Ext. PW14/D and also recorded the statements of witnesses correctly as per their version including the statements of Chaman Lal Ext. PW 14/E. Accused was arrested and during police custody, accused was taken to his residential house at Kaza. His house was already got sealed through SHO Kaza in the presence of ASI Bala Ram, who took into possession the keys of his house and one NOC register and then handed over the same to the IO.Search of the house was done in the presence of the witnesses, but nothing incriminating was recovered therefrom. Thereafter, on the request submitted by the Vigilance Department Sh. J.C. Sharma, Secretary (PWD) accorded prosecution sanction, Ext. PW6/A to launch prosecution against the accused. PW-14 handed over the sealed parcel, Ext. P-1 before MHC in the police station. The then Dy.S.P. Sh. N.K. Sharma also partly investigated the case and accused supplied his salary statement Ext. PW10/A and statement qua his movable and immovable property from Ext.PW10/B. Part of investigation was also conducted by PW-11 and on 18.9.2012, he recorded the supplementary statement, Ext. PW11/A of Dawa Sherpa to the effect that he being Contractor paid commission to the tune of Rs. 25,000, in cash, to accused on 7.9.2009. PW-5 also paid Rs. 26,000, in cash, to accused in an envelope. The recovered currency notes were deposited in Government Treasury vide order Ext. PW14/O, the inventory of which is Ext. PW14/E and challan receipt is Ext. PW14/Q. During the course of investigation, it was found that on 16.10.2009, at about 2:30 PM at SASE Helipad, Manali accused while working as Ex. En. In HPPWD and posted as such at HPPWD Divn Kaza while traveling in vehicle No. HP-41-0338 was found in possession of 9,44,000/- with him, by corrupt means and abusing his official position as public servant had obtained for himself from Contrators working under HPPWD Divn Kaza, namely Dawa Sherpa, Kami Lama and Sonam Kishey etc and accused could not satisfactorily account the same as income of his pecuniary resources and property disproportionate to his known sources of income during the period of his posting at Kaza, which is illegal pecuniary advantages definedl under the PC Act. On the completion of the proceedings and on the receipt of prosecution sanction, PW-10 prepared the final report and presented the same before the Court for disposal in accordance with law. 3. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court concerned. 4. The accused was charged by the learned trial Court for his committing offences punishable under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. In proof of the charge, the prosecution examined 14 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under Section 313 of the Code of Criminal Procedure, was, recorded by the trial Court, wherein, the accused claimed innocence and pleaded false implication in the case. However, he did not lead any defence evidence. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. 6. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Counsel appearing for the convict/appellant has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing, not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation by it of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The accused was charged for his committing offences punishable under Section 13(1)(d) & (e) read with Section 13(2) of Prevention of Corruption Act, 1988. The learned Special Judge, Kullu, District Kullu, pronounced an order of acquittal upon the accused in respect of charges, framed, against the accused under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The accused was charged for his committing offences punishable under Section 13(1)(d) & (e) read with Section 13(2) of Prevention of Corruption Act, 1988. The learned Special Judge, Kullu, District Kullu, pronounced an order of acquittal upon the accused in respect of charges, framed, against the accused under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. However, the appellant was convicted for charge framed under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. In consequence thereof, the accused was sentenced to undergo simple imprisonment, for a term of four years along with fine of Rs. 20,000/-, and in default of payment of fine, he was sentenced to simple imprisonment extending for a term of six months. 10. The State of H.P. has not assailed the aforesaid portion of the judgment recorded by the learned trial Court, whereby the latter Court proceeded to acquit the accused, for charge framed under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Consequently, the findings returned thereon acquire conclusivity. The appellant/convict is aggrieved by the order of conviction pronounced, upon him, in respect of affirmative findings, returned by the trial Court, vis-à-vis charge framed under Sections 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. 11. The Investigating Officer concerned had, in his report under Section 173 of the Cr.P.C., as furnished before the learned trial Court, made a indepth allusion(s,) (i) with respect to the comparative assets and income of the accused, thereafter he proceeded to draw conclusions, of, the assets, of the accused, being dis-proportionate vis-àvis his known sources of income. (ii) However, the report of the Investigating Officer, furnished, before the learned Special Judge concerned, remained evidently un-appended with any supporting therewith documentary evidence, wherefrom, he had therein drawn inculpatory conclusions against the accused. Even when he stepped into the witness box, he did not tender, any, of the material incriminatory documentary piece of evidence, wherefrom, he drew inculpatory conclusions against the accused. Consequently, the conclusions/findings, furnished, by the Investigating Officer concerned, in his report prepared under Section 173 Cr.P.C. remained evidently not proven given (i) the documents appertaining therewith not standing appended therewith (ii) theirs being neither tendered nor exhibited nor hence cogently proven. Consequently, the conclusions/findings, furnished, by the Investigating Officer concerned, in his report prepared under Section 173 Cr.P.C. remained evidently not proven given (i) the documents appertaining therewith not standing appended therewith (ii) theirs being neither tendered nor exhibited nor hence cogently proven. In aftermath, the imputation of reliance by the learned trial Court, upon, prosecution evidence, bereft of surging forth, of the aforesaid imperative firm incriminatory documentary evidence against the accused, cannot, constrain this Court to affirm the findings, returned against the accused, vis-à-vis charge framed against the accused under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. 12. The learned Additional Advocate General contends, that (i) with there being references in the statement of PW-10 with respect to, documents Ext. PW10/A and Ext. PW10/B, being purportedly handed over to the Investigating Officer concerned, by the accused, hence the aforesaid documents appertaining to his income from various sources, (ii) yet merely thereupon no conclusion can be drawn, of, the documents bearing Ext.PW10/A and bearing Ext. PW10/B, being imbued with sufficient probative vigor, (iii) especially when the Investigating Officer concerned, was also enjoined, to prepare valid memos in respect of the accuseds’ handing over the documents borne in Ext. PW10/A and in Ext. PW10/B vis-à-vis him. With concomitant effect of documents borne in Ext. PW10/A and in Ext. PW10/B being unreadable against the accused (iv) their purported collections, from, the accused being not proven in accordance with law, (v) especially when there is no admission in respect of his handing over the aforesaid documents, vis-à-vis the Investigating Officer concerned, (vi) thereupon the deposition of the Investigating Officer, of, the accused purveying the aforesaid documents, vis-à-vis him is falsified, (vii) moreso, when no explanation in respect thereof has been elicited from the accused, during, drawing of proceedings under Section 313 Cr. P.C., rendering them reiteratedly, to not, constitute cogent pieces of evidence. 13. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned appellate Court suffers from a perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 14. The appeal is allowed. The impugned judgment is quashed and set aside. The appellant/convict be released forthwith, if not required in any other case. 14. The appeal is allowed. The impugned judgment is quashed and set aside. The appellant/convict be released forthwith, if not required in any other case. Fine amount, if deposited by the accused be forthwith refunded to him. Personal and surety bonds be forthwith discharged.