Om Parkash vs State of Haryana

S.D. Bajaj, J.

Around 1.25 A.M. (midnight) on 21 st July, 1987, Shri Sampat Singh the then Excise & Taxation, Minister, Haryana, raided the Sales Tax Barrier at Kundli in Sonepat district. Lajvir Singh, Flying Squad Officer in the department of Excise and Taxation was with him. On entering the barrier the raiding party found that Om Parkash accused was on duty inside the barrier for entering Sales Tax Declaration. Forms of the vehicles loaded with goods entering Haryana from Delhi side. They saw accused taking out currency notes from his pocket and throwing them outside from the widow in front of his seat. Coaccused Mohinder Kumar alias Jagdish collected them from the ground beneath the window outside the Sales Tax Barrier room and made them over to Lajvir Singh. On counting those were found to be of the value and denomination of Rs. 130/ only detailed in para 2 of the impugned order of the learned trial court. Lajvir Singh handed over these currency notes to ASI Daya Nand who in turn made them over to Investigating Officer D.S.P. Mohinder Singh.

The charge framed against the two accused on the basis of evidence aforesaid on 21st April, 1986 reads :

CHARGE SHEET

"State v. 1. Om Parkash son of Ram Chander, aged 37 years Clerk (under suspension) Excise and Taxation Deptt. Haryana now resident of Panipat.

Mohinder Kumar alias Jagdish son of Chandi Ram aged 38 years Clerk (under suspension) Excise and Taxation Deptt. Haryana now resident of Panipat.

I, Gorakh Nath, Special Judge, Sonepat, do hereby charge you Om Parkash and Mohinder Kumar alias Jagdish accused as follows :

That on or about the night between 20/2171987 in the area of village Kundli i.e. at the Sales Tax Check Barrier you both were working as Clerks and in your capacity as public servants you by abusing your position as such public servants obtained for yourself Rs. 14/ from Balbir son of Ramji Lal driver of truck No. DEG 1100, Rs. 20/ from Om Parkash son of Jogi Ram driver of truck No. DEL 1908, Rs. 18/ from Deep Singh son of Bhag Singh driver of truck No. MYE 8187, Rs. 15/ from Mohinder Singh son of Bhagwan Dass driver of truck No. HRE 6576, Rs. 15/ from Nahri Lal driver of truck No. HYA 9895, Rs. 30/ from Mukhtiar Singh son of Prem Singh driver of truck No. HYX 1017, Rs. 30/ from Ajit Kumar son of Jiwan Dass driver of truck No. HRE 7924, Rs. 25/ from Nasib Singh son of Bhagwan driver of truck No. HRL 1307, (in all Rs. 157/) as illegal gratification as a motive or reward for issuing transit slips to these persons and thus you both committed criminal misconduct punishable under section 5(2) of the Prevention of Corruption Act read with section 161 IPC and within my cognizance.

And I hereby direct that you both be tried by this court on the above charge.

Sd/

Special Judge,

Sonepat.

2141988.

Certified that the charge has been read over and explained to the accused in simple Hindi. The accused have pleaded not guilty to the charge against them. A copy of the charge sheet has been supplied to each of the accused free of cost.

Sd/

Special Judge,

Sonepat."

2141988.

Vide its impugned judgment dated 19th October 1988 learnedSpecial Judge, Sonepat acquitted coaccused Mohinder Kumar alias Jagdish and convicted accused Om Parkash of the commission of the offence under see. 5(2) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay Rs. 250/ as fine. In default of payment of fine the convicted accused was ordered to undergo rigorous imprisonment for a further period of three months. Feeling aggrieved therefrom convicted accused Om Parkash has filed Criminal Appeal No. 444 SB of 1988 in this Court.

I have heard Shri R.S. Cheema, Advocate, with Shri Rajiv Trikha and Mr. M.S. Sidhu, Advocates, for the appellant, Shri Surinder Lamba, Advocate, for the State and have carefully gone through the material on record.

The charge levelled against the two accused i.e. Om Parkash and Mohinder Kumar alias Jagdish was that abusing their position as clerks (public servants) posted at Sales Tax Barrier they had obtained Rs.157 from eight truck drivers named in the charge by way of illegal gratification for issuing them transit passes and thereby they had committed the offence under section 5(2) of the Prevention of Corruption Act, 1947, read with section 161 of the Indian Penal Code. None from amongst the eight truck drivers aforesaid came forward to support the charge. The money collected from outside the window also fell short of the amount covered by the charge by Rs. 27/. All the same since the raid had been conducted by the Minister, the Investigating Agency saw to it that somebody must be sacrified at the (SIC) so that their god in the Minister does not get displeased. Learned trial court fell easy prey to their utterance that recovery of 130/ from a Clerk on 21st day of the month was disproportionate to his known sources of income, little realising that salary of the Clerk these days is about Rs. 1500/ P.M. and he had yet to maintain himself and his family for the remaining 11 days of the month from 21st July, 1987 to 31st July, 1987 (both days inclusive). The appellant could legitimately have with him Rs. 500/ equal to 1/3rd of his salary on 21st July, 1987 for being spent on himself and his family in the remaining unexpired portion of the month of July, 1987. Alleged instructions that the Clerk could not carry with him, while on duly more than Rs. 100/ were never produced before the learned trial court. Learned trial court, therefore, obviously erred in reaching its conclusion in this regard which was even otherwise wholly shorn out of the context of the charge. The accused was, therefore, take prejudiced in his defence and the conviction recorded by the learned trial court deserves to be set aside on this score. Sentence order based on such conviction has also to be negatived.

Relevant section 161 of the Indian Penal Code and section 5(1) and (2) of the Prevention of Corruption Act, 1947 read :

"161. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being or expecting to be a public servant, accepts or obtains. or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, Corporation or Government company referred to in Section 21, or with any Public servant, as such shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both."

Explanation : Expecting to be a public servant".If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, may be guilty of cheating, but he is not guilty of the offence defined in this section.

"Gratification". The word gratification" is not restricted to pecuniary gratification, or to gratification estimable in money.

"Legal remuneration" The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which be is permitted by the Government which he serves, to accept.

"A motive or reward for doing". A person who receives a gratification as a motive for doing what be does not intend to do, or as a reward for doing what he has not done, comes within these words.

Section 5. Criminal misconduct in discharge of official duty :

A public servant is said to commit the offence of criminal misconduct :

(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code; or

(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been or to likely to be concerned in any proceedings or business transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested in or related to the person concerned; or

(c) If he dishonestly or fraudulently misappropriates or otherwise` converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(e) If he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine; Provided that the Court may for any special reasons recorded in writing, impose a sentence of imprisonment of less one year."

It would thus appear that the misconduct attributed to the accused appellant in the charge fell under clause (a) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947 read with section 161 of the Indian Penal Code while the misconduct attributed by the learned trial court to him (which was not the subject matter of the charge) fell under clause (e) of subsection (1) of section 5 aforesaid. The accused was thus entrapped by surprise, was consequently prejudiced in his defence and was, therefore, wrongly convicted for his having been found in possession of Rs. 130/ on 21st, July, 1987 on ground of the planted money admittedly secured from Mohinder Kumar alias Jagdish coaccused acquitted by the learned trial Court being disproportionate to his known sources of income. Prosecution version itself completely negatives the charge framed by the learned trial court against the accusedappellant.

It was observed by their Lordships of the Supreme Court in Bhagirath v. State of Madhya Pradesh, Volume IV1976 Chandigarh Law Reporter 116, "It is well settled that the prosecution can succeed by substantially proving the very story it alleges, it must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis. The approach of the Courts below in reconstructing a story different from that propounded by the prosecution and then convicting the appellant on that basis, was clearly erroneous."

For the reasons given above, Criminal Appeal filed by convicted accused Om Parkash succeeds and is allowed. Accused Om Parkash is acquitted. The accused is on bail. Bail bond furnished by his surety and personal bond of the accused appellant himself shall both stand discharged. Fine realised would also be refunded to the accusedappellant.

JUDGMENT accordingly.