2016(5) Law Herald (P&H) 4165 : 2015 LawHerald.Org 3697
IN THE HIGH COURT OF PUNJAB AND HARYANA
The Hon’ble Mr. Justice Fateh Deep Singh
CRA-SNo 1117′-SB of’2008
State of Punjab
Decided on 04/11/2015
For the Appellant Mr M K Dogra, Advocate
For the Respondent/State Mr J S Brar, Asstt Advocate General, Punjab
Prevention of Corruption Act, 1988, S.7 & S.13(2)—Acquittal–Allegations of
prosecution that the accused while posted as Patwari had demanded from the
complainant a farmer Rs. 1000 as bribe for giving him copy of jamabandi and khasra
girdawari of his land—Trap Laid-Amount of Rs. 1000 recovered from pants of
accused—Complainant and shadow witness were declared hostile—A person to
facilitate getting a copy of a revenue record needs to apply with deposit of charges
and nothing tangible has been brought on the record that the complainant never
moved any such application for facilitating copy of the jamabandi/khasra girdawari-
-Unless it is proved beyond all reasonable doubt that the accused voluntarily
accepted the money knowing it to be bribe and whereas in this case nothing
concrete has come forth-Conviction set aside. (Paras 5, 6 & 9)
1 B Jayarajv State of A P, 2014 (2) RCR (Criminal) 410 (Para 6)2.CM Ginsh Babu v C B I , 2009(2) Law Herald (SC) 789 (Para 8)
- C.M. Sharma v. State of A.P., 2011(1) Law Herald (SC) 74. (Para 8)
4 P Satyanarayana Murthy v. The Dist. Inspector of Police, 2015(4) Law Herald (SC) 3111 : 2015(4) Law Herald (P&H) 3460 (SC): 2015 LawHerald.Org 1870. (Para 7)
Mr. Fateh Deep Singh, J.:- Under challenge in this criminal appeal by the convict appellant Manmohan Singh is the findings of the Court of learned Special Judge, Amritsar dated 07.06.2008 whereby the accused has been found guilty of commission of offences under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (in short, ‘the Act’) whereby he has been sentenced under Section 7 of the Act to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000 and in default of payment of fine to further undergo rigorous imprisonment for three months, and to a similar sentence under Section 13(2) of the Act.
- The allegations of the prosecution are that the accused while posted as Patwari had
demanded from the complainant Jasbir Singh, a farmer, Rs. 1000 as bribe for giving him copy
of jamabandi and khasra girdawari of his land when the actual fees was Rs. 450 and that upon
the complaint to DSP Kashmir Singh, Investigating Officer of the Vigilance Bureau, a raid was
planned in the presence of shadow witness Nirmal Singh, official witnesses R.P. Singh SDO
and Balwinder Singh JE, whereby ten currency notes of the denomination of Rs. 100 each, in
all totalling to Rs.1000, were smeared in phenolphthalein powder after noting their numbers
and upon undergoing necessary formalities, trap was laid. When the accused demanded the
money and on its handing over, on signal by the shadow witness the vigilance team swooped
upon the accused leading to recovery of tainted currency notes from the pockets of his pants,
thus leading to prosecution of the accused and culminating into his conviction.
- Heard Mr. M.K. Dogra, Advocate representing the appellant; Mr. J.S. Brar, Asstt. Advocate
General, Punjab on behalf of the respondent/State and on perusal of the records.
- The contentions that the very element of demand by the accused of illegal gratification and
its acceptance are not at all established by the prosecution, certainly could not be
controverted on behalf of the State.
- The complainant Jasbir Singh, who has been examined as PW1, nowhere states that it was
on the demand of the accused he had handed over to him the tainted currency notes and
thus, was declared hostile on the State request and put to cross-examination and rather
has contradicted the prosecution version to hold that the shadow witness Nirmal Singh was
not present at the time of the alleged occurrence and has even failed to detail anything
about the official/shadow witnesses. Rather in his cross-examination by the defence has
clearly stated that Manmohan Singh never demanded or accepted any bribe from him and
that he had kept the tainted money in the office from where it was recovered and that he
only put his thumb impression on the documents at the asking of the DSP, and to the
similar effect is the deposition of PW2 Nirmal Singh shadow witness who too was declared
hostile and cross-examined. Though it is well settled principle of law that evidence of hostile
witnesses is not to be thrown over-board and can be used to corroborate the prosecution
version if so necessitated, but as has been argued on behalf of the appellant side, the very
element and evidence of demand by the accused as well as its acceptance could not be
brought about and proved through cogent, reliable and substantial evidence. Since the
complainant and the shadow witness are two witnesses of this demand and acceptance, who
having resiled and not having supported the prosecution story, creates a material void in the
prosecution version and though as is argued on behalf of the State recovery of the tainted
currency notes has been brought about by PW4 R.P.Singh SDE, PW5 Balwinder Singh JE as
well as Investigating Officer PW6 DSP Kashmir Singh, but the very factum of demand and acceptance could not be established and even the learned State counsel has readily acceded to this position on the record.
- The Hon’ble Supreme Court in ‘B. Jayaraj v. State ofA.P.’ 2014 (2) RCR (Criminal) 410,
have elaborated in depth and interpreting the very requirements of Section 7 of the Act, have held that demand of illegal gratification is sine-qua-non to constitute the offence and mere recovery of currency notes cannot constitute the offence under Section 7 of the Act unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe and whereas in this case nothing concrete has come forth. Since the very offence under Section 7 of the Act has not been established, it will not be fair to hold as far as offence under Section 13(1 )(d) and Section 13(2) of the Act are concerned, as in any event, only under Section 7 of the Act there can be a presumption of acceptance of illegal gratification in terms of Section 20 of the Act that it was received for doing or forbearing to do an official act. Thus, holding that the proof of acceptance of illegal gratification can follow only if there is proof of demand and which is materially lacking in the present case.
- Even in a recent view in ‘P. Satyanarayana Murthy v. The Dist. Inspector of Police and
another’/2015(4) Law Herald (SC) 3111 : 2015(4) Law Herald (P&H) 3460 (SC): 2015
LawHerald.Org 1870J: Criminal Appeal No. 31 of 2009, decided on 14.09.2015), the Hon’ble
Apex Court has laid down the principle as follows:
“20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1 )(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1 )(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.”
- Even in similar situations law has been settled, reference of which can be taken note of the
ratios in ‘C.M. Sharma v. State of A.P.’/2011(1) Law Herald (SC) 74J : 2011(1) RCR
(Criminal) 183; and ‘C.M. Girish Babu v. C.B.I., /2009(2) Law Herald (SC) 789J; 2009(2)
RCR (Criminal) 134.
- Learned trial Court failed to appreciate this vital aspect of the case in the correct
More so, as per the procedure which is conceded to even by the learned State
counsel, b person to facilitate getting a copy of a revenue record needs to apply with deposit
of charges and that nothing tangible has been brought on the record that the complainant
ever moved any such application for facilitating copy of the jamabandi/khasra girdawari. The
learned trial Court has even failed to put material evidence as to the pants from where the
alleged tainted money has been recovered and which was sent to laboratory for analysis, to. the accused in his statement under Section 313 Cr.P.C., are matters which certainly affect the outcome of the case.
- Thus, in the totality of what has been detailed and discussed above, there has been misconstruing of the factual as well as legai intricacies involved in the case by the trial Court necessitating indulgence by this Court byway of acceptance of the instant appeal and thereby setting aside the impugned judgment of conviction.
Ordered accordingly. Records be sent back.