Crl. Appeal No. 677-SB of 2000 v. The State of Haryana

Judgment

1. 2. State of Haryana Surjit Singh s/o Rattan Singh r/o Professor Colony, Yamuna Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --2-- Nagar. --- ... Respondents.

CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr.J.S. Bedi, Advocate for the appellant in Crl. Crl. Appeal No. 677-SB of 2000, for the respondent in Crl. A. No. 197-SB of 2009 and for respondent no.2 in Crl. Revision No.1433 of 2000. Mr. Sukhwinder Singh Nara, Sr. DAG, Haryana for the State. Mr. Pritam Saini, Advocate for the complainant as well as for the petitioner in Crl. Revision No.1433 of 2000. **** M. Jeyapaul, J. The accused, who was convicted for offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter called 'the PC Act') and was sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.8,000/- and in default to undergo rigorous imprisonment for a further period of three months, has come forward with Criminal Appeal No. 677-SB of 2000. Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --3--

2. Though the accused stood charged with offences punishable under Sections 7 and 13(2) of the P.C. Act, the trial Court convicted the accused only under Section 7 of the P.C. Act. Aggrieved by the acquittal of the accused under Section 13(2) of the P.C. Act, the State has preferred Criminal Appeal No. 197-SB of 2009.

3. Concerned with the quantum of sentence, awarded by the trial Court for offence under Section 7 of the P.C. Act, the complainant has preferred Criminal Revision No. 1433 of 2000.

4. The case in brief of the prosecution as unfolded by the witnesses examined on its side is as follows:- (a) Ajmer Singh, PW-7 purchased some land under a registered sale deed. He contacted Surjeet Singh, accused in connection with the entry of mutation of the sale deed in the revenue records pursuant to the said transaction in his favour. But the accused demanded a sum of Rs.1500/- from the complainant PW-7 for effecting the mutation in the revenue records. Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --4-- (b) On 13.05.1996 he proceeded to the office of State Vigilance Bureau, (SVB) Karnal and lodged a complaint which was registered as a Formal First Information Report by the Deputy Superintendent of Police, Mr. Rajinder Singh, (PW-9). The complainant brought a sum of Rs.1500/- for the purpose of handing over the same to the accused. A list of currency notes Ex.PA was prepared by PW-9. He also arranged to demonstrate the Phenolphthalein test to the complainant. Instruction was given to the shadow witness Satish Kumar, Peon attached to his office to give a signal immediately after bribe was received. The currency notes were treated with Phenolphthalein powder. (c). PW-6 and PW-7 proceeded to the office of the accused where they found that he (accused) was not available. Thereafter they proceeded to the house of the accused. The shadow witness PW-6 stood outside and PW-7 entered into the room in which the accused was found. He handed over a sum of Rs.1500/- to the accused. PW-6 passed on the signal to the raiding party, Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --5-- headed by PW-9 who immediately descended on the house of the accused. Sodium carbonate solution was prepared. The hands of the accused were dipped therein. The colour of the solution turned pink. The site plan was prepared by PW-9. The accused was arrested and thereafter remanded to judicial custody. Having examined all the witnesses PW-9 and filed final report against the accused for offences under Section 7 and 13(2) of the P.C. Act.

5. The trial Court having heavily relied upon the evidence of the complainant, (PW-7) in the background of the evidence of shadow witness, PW-6, returned a finding that the prosecution has established its case that the accused has committed an offence punishable under Section 7 of the P.C. Act but not under Section 13(2) of the P.C. Act.

6. The learned Counsel appearing for the appellant/accused in Criminal Appeal No.677-SB of 2000 would submit that the raiding party failed to associate any independent witness to the trap proposed to be laid. Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --6-- The highly interested witness, the complainant in this case, who was examined as PW-7 alone speaks to the amount parted with by him. He would further submit that there is self contradiction in the evidence of PW-7 as to the actual date on which the earlier demand of bribe was made by the accused. PW-7 has come out with three different versions as to the actual date on which the demand of bribe was made by the accused. The copy of the sale deed was obtained by the Investigating Officer, PW-9 only from the Registrar office. No copy of the sale deed alleged to have been furnished by the complainant to the accused was recovered from the custody of the accused. There is no evidence on record to show that the accused in fact asked the complainant to come down to his house in case he was not found available in his office. Therefore, it is his submission that the prosecution has failed to establish the case under the P.C. Act against the accused.

7. The learned Senior Deputy Advocate General, appearing for the State, who has preferred Criminal Appeal No.197-SB of 2009 would submit that the acceptance of Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --7-- the amount by the accused give rise to the presumption under Section 20 of the P.C. Act. The demand made by the accused was spoken to cogently by the complainant PW-7. As the City Magistrate, who is an independent witness has been associated in the trap proceedings, there cannot be any complaint as to the integrity of witnesses associated by PW-9 during the course of trap. It is his further submission that the complainant has spoken to the earlier demand and the acceptance of the amount on the day when the trap was laid at the house of the accused. Therefore, it is his submission that the prosecution has established the case beyond reasonable doubt that the accused has committed an offence not only under Section 7 of the PC Act but also under Section 13(2) of the PC Act.

8. The learned Counsel appearing for the complainant, who has preferred Criminal Revision No. 1433 of 2000 would submit that the prosecution has established beyond reasonable doubt the offence committed by the accused under the P.C. Act but Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --8-- unfortunately the sentence imposed on the accused does not match with the gravity of the offence established against him.

9. PW-7 Ajmer Singh, who is the complainant in this case has stated that after purchasing a property under the sale deed dated 21.6.1995 from Kasturi Devi, he approached the accused for mutation of entry in the revenue records but the accused being the Patwari of the revenue village concerned, demanded a sum of Rs.1500/- from the complainant. The First Information Report lodged by PW-7 would disclose that on the very same day of the registration of the sale deed dated 21.06.1995, the complainant, (PW-7) approached the accused for the aforesaid purpose and the accused demanded a sum of Rs.1500/- as gratification. PW-7 ascertained in his cross- examination that he had informed the police that on

21.6.1995 itself, he proceeded to the accused for the purpose of mutation. He has come out with yet another version during the course of cross-examination that after he obtained the copy of the sale deed, he visited the Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --9-- accused for mutation in the revenue record. He further goes on to say that he did not actually remember the date and month on which he visited the accused, who happened to demand a sum of Rs.1500/- as bribe.

10. The aforesaid testimony of PW-7 would go to show that the complainant was not sure as to when actually the demand of Rs.1500/- was made by the accused from him for mutation of entry in the revenue records. Secondly after about 11 months time from the alleged date of demand of bribe by the accused, it appears that the complainant all of a sudden visited the State Vigilance Bureau and chose to give a complaint. It is totally unbelievable that a person waited for about 11 months to lodge a complaint as to the demand of bribe made by a Government official. Never had the complainant spoken to the fact that the accused persisted the demand of Rs.1500/- after he made the first demand from him. Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --10--

11. Quite unfortunately neither the application submitted by the complainant, nor copy of the sale deed obtained by him (complainant) was recovered either from the office or from the house of the accused. Therefore I find that the very foundation of the prosecution that a demand was made on 21.6.1995 when the complainant obtained a sale deed is found to be very shaky.

12. The Investigating Officer in this case has associated a Peon, serving in his department, as a shadow witness. Such a practice cannot be approved by the Court of law. A shadow witness cannot be picked from the very same department of State Vigilance Bureau, as an official from the very same department cannot be expected to be impartial to the case launched by the very same department.

13. Of course as observed by the trial Court, a witness of some status namely City Magistrate, PW-1 was associated for the purpose of trap. It is not the evidence of PW-1 that he witnessed either the demand made by the accused or acceptance of the same. We are only Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --11-- concerned with the demand made by the accused and the acceptance of the same by him. An independent witness will have to speak to such a demand and acceptance of the bribe. When the witness of some status PW-1 was not a witness to such a demand and acceptance of bribe by the accused, his evidence does not go to strengthen the case of the prosecution.

14. Let us take up the evidence of Satish Kumar, Peon, serving in the office of the State Vigilance Bureau, who has been examined as PW-6 in this case. He has been assigned with the job of shadow witness. He had not witnessed either the demand or the acceptance of the bribe by the accused. He sat outside the room where the alleged bribe was taken by the accused. Even as per his own version, he had not even overheard the interaction between the accused and the complainant. Firstly the integrity of the Peon in the matter of speaking the truth in this case as he is one of the officials of the State Vigilance Bureau, is highly doubtful. Secondly, even as per his version he had not witnessed anything as to the demand Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --12-- of bribe and the acceptance of the same by the accused. Therefore, his evidence also does not go to establish the case of the prosecution that there was a demand followed by acceptance of bribe by the accused.

15. The evidence of PW-6 would disclose that PW-6 and PW-7 proceeded to the house of the accused as the accused had already asked the complainant to come to his house. It is not the case of the complainant that the accused who demanded bribe about 11 months ago, asked him to come to his house in case he was not found in his office. He has not whispered about such information passed on by the accused to him during the course of evidence before the trial Court. It is only PW-6, who is smart enough to say that he and PW-7 proceeded to the house as there was some message given by the accused to the complainant to come down to his house.

16. It is true that under Section 20 of the P.C. Act once the prosecution establishes that something was accepted followed by demand, unless the contrary is established it will have to be presumed that such Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --13-- acceptance was towards the discharge of his official duty as gratification.

17. In the case on hand, the very demand made by the accused about 11 months earlier to the trap was found very shaky and unbelievable. The demand made by the accused on the date of trap was not at all established by the prosecution. Therefore, no presumption can be raised under Section 20 of the P.C. Act that the acceptance was towards the discharge of official duty as gratification.

18. No explanation was furnished by the prosecution as to why no independent witness was associated for the purpose of trap laid by it. The non- association of any independent witness to the trap in the background of serious discrepancies found in the evidence of PW-1 as to the demand made by the accused is found to be fatal to the case of the prosecution.

19. The complainant has an interest in the case launched against the accused. The Peon, who was associated for the purpose of trap is also interested in this case in as much as the accused was booked by his own Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --14-- State Vigilance Bureau. Therefore, it is totally unsafe to base to base conviction of the accused on the evidence of the complainant and the Peon, attached to the State Vigilance Bureau.

20. The mere recovery of the amount from the possession of the accused would not establish the case under Section 7 of the P.C. Act. The specific demand made by the accused and the acceptance of bribe were not established by the prosecution. As already held, there is no material worth mentioning to establish the case that there was a demand of bribe and acceptance of the same by the accused.

21. In a similar case in Suresh Kumar v. State of Haryana, 2009(4) RCR(Criminal) 608, this Court has held that the mere recovery of the tainted currency notes from the shoes of the accused would not establish the case of the prosecution. That was also a case where a Patwari of the revenue village demanded a sum of Rs.300/- from the complainant. The shadow witness was standing at a distance where he could not hear the Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --15-- demand of bribe made by the accused. As there was no corroboration to the alleged demand made by the accused, this Court in the aforesaid case has held that mere recovery of the tainted currency would not establish the case under the P.C. Act.

22. In the instant case, PW-7 has not even stated that there was actually a demand on 13.05.1996 when he parted with the money to the accused. Of course during the course of cross-examination PW-7 would state that he informed the accused that he had brought the money for the purpose of entry of mutation in the revenue records. He had also not stated that he had brought the money as demanded by him for the purpose of mutation of entry in the revenue records. Further it is totally unbelievable that he informed the accused that he brought the money for the purpose of mutation of entry in the revenue record after about 11 months.

23. For all these reasons, I find that the trial court has placed undue reliance upon the evidence of PW6 and PW-7 and held that there was a demand of bribe and Crl. Appeal No. 677-SB of 2000 Crl. Appeal No. 197-SB of 2009 & Crl. Revision No. 1433 of 2000 --16-- acceptance of the same by the accused. It is found that the prosecution has come out with an artificial story after about 11 months of the alleged demand made by the accused. Therefore, the accused is entitled to acquittal.

24. Accordingly, Criminal Appeal No.677-SB of 2000 is allowed. The judgment of conviction recorded by the trial Court under Section 7 of the P.C. Act is set aside and the appellant ( Surjeet Singh ) is acquitted of the charge framed against him. The bail bond if any executed by him shall stand annulled. The fine amount if any paid by him shall be refunded forthwith by the trial court. Consequently Criminal Appeal No. 197-SB of 2009 and Criminal Revision No. 1433 of 2000 stand dismissed.

06.12.2010 dinesh ( M. Jeyapaul ) Judge Whether to be referred to the Reporters or not? ( Yes/ No )