Raj Pal and Another vs State of Punjab

K.C. Puri, J.—The appellants were tried by Shri M.S.Chauhan, the then Special Judge, Amritsar. Vide impugned judgment dated 5.9.2002, they were convicted under Sections 13(2), 7 and 8 of the Prevention of Corruption Act,1988 (in short the Act) and 420 IPC. Vide separate order dated 5.9.2002, they were sentenced as under:

Raj Pal, accused.

To undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months u/s 7 of the Act.

To undergo further rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- u/s 13(2) of the Act. In default of payment of fine, he has been ordered to undergo further rigorous imprisonment for six months. u/s 420 IPC, he has been awarded one year rigorous imprisonment and fine of Rs. 1,000/- and in default of payment of fine, he has been ordered to undergo rigorous imprisonment for three months.

Narinder Pal, accused.

u/s 8 of the Act, he has been ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. u/s 13(2) of the Act, he has been ordered to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2000/-. In default of payment of fine, he has been ordered to undergo rigorous imprisonment for six months. He has been further ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- u/s 420 IPC. In default of payment of fine, he has been ordered to undergo further rigorous imprisonment for three months.

All the substantive sentences have been ordered to run concurrently.

The controversy lies within a very narrow scope and following brief reference to the factual aspects would suffice:- Gura Singh son of Nihal Singh, resident of village Dhunda had a son named Swaran Singh who was killed by the terrorists. His wife had also died. Swaran Singh left behind a son and his parents namely Gura Singh, father and Dan Kaur, mother. The aggrieved family received Rs. 20,000/- in cash and Rs. 30,000/- in the shape of National Saving Certificates on account of relief from the Government. However, pension in that respect was not released in spite of number of rounds having been made by Gura Singh. He ultimately got in touch with Raj Pal Clerk, in the office of Sub Divisional Magistrate, Kadoor Sahib, who is an accused in this case. Said Raj Pal after going through the file of the case told Gura Singh that their case was not properly framed as the Senior Superintendent of Police had stated that Swaran Singh was killed on account of some enmity. In these circumstances, the National Saving Certificates and the cash amount of Rs. 20,000/- was also to be returned. He also told Gura Singh that he might also be involved in a criminal case for having obtained the relief on false grounds. Gura Singh pleaded before him to help him as his son Swaran Singh was infact killed in terrorist action. Thereupon,accused Raj Pal asked Gura Singh to return the National Saving Certificates and only then he would do something in the matter.

Complainant Gura Singh got in touch with Gurdial Singh PW on 8.7.1997 and along with him went to the office of the Sub Divisional Magistrate, Khadoor Sahib. Both of them told Raj Pal accused that the death of Swaran Singh was in a terrorist action and pleaded before him to help the complainant by getting the pension released. Raj Pal accused demanded Rs. 10,000/- as illegal gratification from him. Ultimately, deal was settled at Rs. 8,000/-. The accused also took National Saving Certificates of Rs. 30,000/- from the complainant. Raj Pal accused told the complainant to pay Rs. 8,000/- to his brother Narinder Pal, second accused who was running a shop at Fatehabad on 11.7.1997. It was also assured that after the receipt of money, said Narinder Pal would return National Saving Certificates to the complainant.

The complainant did not like the idea of getting pension released in lieu of illegal gratification. Accordingly, he feigned that he was not possessing sufficient money at that time. The complainant and Gurdial Singh PW contacted Vigilance Bureau. The statement of the complainant was recorded and on its basis, the present case was got registered against the accused. The complainant produced a sum of Rs. 8,000/- in the form of 16 currency notes in the denomination of Rs. 500/- each before the Investigating Officer. Their numbers were noted down in a memo. After applying Phenol-phthalein ( in short "P" Powder), the same were returned to the complainant. After observing necessary formalities, a raiding party was organized. Gura Singh and Gurdial Singh went to accused Narinder Pal. After the money was passed on to accused Narinder Pal by the complainant on his demand, Gurdial Singh gave a signal to the police party. Randeep Singh, official witness was joined in the raiding party. The accused was arrested and the bribe money was recovered from his hand.

A tumbler made of plain glass was requisitioned. Water was put therein and then was put Sodium Carbonate but the colour of the water did not change. Thereupon, accused Narinder Pal was made to wash fingers of both his hands therein. Upon this, the colour of Sodium Carbonate solution turned light pink. Other steps in the investigation were taken and after completion of same, the accused were challaned. The accused were charge-sheeted accordingly to which they pleaded not guilty and claimed to be tried. In order to prove its case against the accused, the prosecution examined PW-1 Harbhajan Singh, Clerk, PW-2 Jasbir Singh, Postal Assistant, PW-3 Gura Singh complainant, PW-4 Gurdial Singh, shadow witness, PW-5 Angur Singh, Naib Sadar Kanungo, PW-6 Randeep Singh, Clerk, PW-7 SP Mohinder Singh, PW-8 Jugal Kishore, PW-9 HC Tarsem Singh, PW-10 Constable Karam Singh.

In their statements recorded u/s 313 Cr.P.C, the accused denied the prosecution allegations appearing against him. Accused Raj Pal has taken the following stand:

I am innocent. False case is made against me. Pension was sanctioned in favour of Dann Kaur and was being regularly paid. Gurdial Singh PW was against me and I never let the illegal work done. He used Gura Singh PW to make false case against me. I never demanded any money. Gurdial Singh has links with the people of Vigilance Department.

Accused Narinder Pal has come out with a plea that he was a deed writer and an agent of the Post Office. Gurdial Singh and Gura Singh came to his shop and handed over money to him for the purposes of opening an account in the Post Office. National Saving Certificates were in possession of Gurdial Singh and were planted upon him.

In their defence, the accused examined DW-1 Pal Singh.

After trial, the accused were convicted and sentenced, as noticed earlier.

Feeling aggrieved against the said judgment, the appellants have filed the instant appeal.

The learned Counsel for the appellants has moved an application u/s 391 read with Section 482 Cr.P.C for permitting the appellants to lead additional evidence to prove documents, Annexures A-1 to A-3. It is mentioned that appellant No. 1 joined the service in the year 1988 in Goindwal Industrial Investment Corporation but since the said Corporation was closed he along with others were adjusted on different posts with the State of Punjab. Ultimately, he joined service as a Clerk with the State of Punjab on 15.4.1993. He was discharging his duty with due diligence and with honesty. The appellants could not produce documents Annexures A-1 to A-3 in the trial Court. These documents prove the fact that the amount of pension was credited to the account of Dan Kaur alias Dhan Kaur much prior to the raid and as such there was no question of demanding illegal gratification.

Notice of this application was given to the State which has opposed the prayer.

The learned Counsel for the appellants has submitted that Annexure A-1 is the application dated 8.4.1997 filed by Dan Kaur for opening an account in the Punjab & Sind Bank. Annexure A-2 is the certificate of Oriental Bank of Commerce, Taran Taran stating that cheque No. 803734 dated 5.6.1997, has been credited to her account on 7.6.1997. Annexure A-3 is the copy of ledger showing that Rs. 16,000/- were withdrawn on 7.6.1997 and the remaining amount of Rs. 1,700/- was withdrawn on 14.6.1997. On the strength of these documents, it is contended that since the amount of pension was already credited to the account of Dan Kaur so there was no question of demanding illegal gratification. Therefore, the stand taken by the prosecution is belied by the documentary evidence.

It is further contended that while appearing as a prosecution witness, the complainant has stated that the amount of illegal gratification was paid to Raj Pal, accused. He was declared hostile. In the cross-examination by the Additional Public Prosecutor, he has improved. The accused has stated that the amount was paid to Narinder Pal. So, it is contended that the prosecution has failed to prove demand, acceptance and recovery of illegal gratification.

It is further contended that the case of the appellants is clear. In fact, the complainant wanted to deposit the amount of Rs. 8,000/- in the account of Post Office. Narinder Pal, accused was the agent of Post Office. The said amount was received by Narinder Pal for depositing the same in the Post Office. The witnesses of the prosecution have admitted the fact that Narinder Pal accused was an agent of the Post Office and in spite of that, the learned trial Court has held that no evidence has been produced by the accused that Narinder Pal was the agent of the Post Office. Therefore, this fact clearly shows that the trial Court has not applied its mind properly. It is further contended that no recovery has been effected from Raj Pal who was a Government servant at the relevant time. In these circumstances also, the case of the prosecution is not proved.

It is further contended that there is no independent corroboration of the demand and acceptance of illegal gratification. The shadow witness is closely related to the complainant. So, his testimony cannot be accepted. The counsel for the appellants has relied upon the following authorities:

(a) Union of India, Thr. Inspector, CBI v. Purnandu Biswas 2005(4) R.C.R 517.

(b) Bir Singh and Others Vs. State of Uttar Pradesh, .

(c) Ganga Kumar Srivastava Vs. The State of Bihar, .

(d) Anand Parkash v. State of Haryana 2008 (2) R.C.R 335 and

(e) Zahira Habibula H. Sheikh and Anr. v. State of Gujarat and Ors. 2004 J.T.94.

The learned State counsel has supported the judgment of the trial Court and has opposed the prayer for additional evidence. It is contended that the case of the prosecution is that the complainant was put under the fear of registering a criminal case against him for the purposes of extracting money from him. Raj Pal accused further told the complainant that he was not only to return the amount of Rs. 20,000/- in cash and Rs. 30,000/- in the shape of National Saving Certificates but a criminal case would be registered on the ground that his son was not killed in terrorist activities. Under threat, Raj Pal accused directed the complainant to pay the amount to Narinder Pal. The trial Court has held that Narinder Pal is not an agent of the Post Office. The appellants have moved an application for additional evidence but still they have not produced any document on the file to show that Narinder Pal was the agent of Post Office. So, that stand taken by the accused stands belied. The prosecution has been able to prove the ingredients of offences beyond any reasonable doubt, for which the accused have been charged. It is further submitted that the authorities relied upon by the counsel for the appellants are not applicable to the facts of the present case. Therefore, a prayer has been made for the dismissal of the appeal.

I have given my careful consideration to the rival submissions made by both sides and have gone through the record of the case.

In this case, the case of the prosecution is that Swaran Singh son of Gura Singh complainant was killed by the terrorists and, on that count, the aggrieved family received Rs. 20,000/- in cash and Rs. 30,000/- in the shape of National Saving Certificates, as per policy of the Punjab Government. Gura Singh met Raj Pal, accused for release of pension but he told Gura Singh that since there was no report from the Senior Superintendent of Police that Swaran Singh was killed in terrorist activities but there was report of Senior Superintendent of Police that Swaran Singh was killed due to enmity. So, in these circumstances, the complainant had to return Rs. 20,000/- in cash and Rs. 30,000/- in the form of National Saving Certificates. Raj Pal accused also told the complainant that a criminal case would be registered against him and, on that count, he demanded Rs. 10,000/-. The deal was settled at Rs. 8,000/-. Gura Singh came in touch with Gurdial Singh who told the complainant not to pay the bribe amount, as per agreement. The bribe amount was to be paid to Narinder Pal, accused. A raid was conducted by the Vigilance Department and Narinder Pal was caught red handed.

The "P" Powder test proved positive. The learned trial Court after appraisal of evidence on the file came to the conclusion that the prosecution has been able to prove the ingredients of offence for which the accused have been charged and consequently convicted both the accused, as detailed above.

The main plank of arguments of counsel for the appellants is that since the pension has already been credited to the account of Dan Kaur much prior to the raid and that the amount of pension had been withdrawn by her in the month of June, i.e. prior to the raid, therefore, there was no motive for demanding the amount.

The above-said contention raised by the counsel for the appellants looks attractive but is without any legal force. The case of the prosecution is that Raj Pal accused told Gura Singh complainant that there was a report of the Senior Superintendent of Police that Swaran Singh, his son was not killed in terrorist activities and was murdered for personal enmity and, on that count, the complainant party had to return Rs. 20,000/- and NSC of Rs. 30,000/- and the complainant was also told that he will have to face trial. The fact remains that according to the prosecution case, the complainant was put in fear of criminal litigation. Moreover, pension is drawn monthly and the case of the prosecution is that when he went to Raj Pal accused for allowing him pension, Raj Pal demanded Rs. 10,000/- and the matter was settled at Rs. 8,000/-. The said amount was to be paid to Narinder Pal, accused. The National Saving Certificates were also taken into possession from the complainant. Mere fact that the complainant has stated that the amount was paid to Raj Pal, accused is not sufficient to discard testimony of the complainant Gura Singh. He was got declared hostile and he has supported the case of the prosecution on all the material particulars. He was cross-examined at length but nothing could be brought on the file to discard his sworn testimony. He is a rustic villager. Gurdial Singh, shadow witness stood like a rock while appearing in the witness-box. There was absolutely no reason for the complainant and the shadow witness for falsely implicating the accused. The amount of Rs. 8,000/- along with National Saving Certificates were recovered from Narinder Pal on a raid. The stand taken by the accused that the said amount was given to Narinder Pal for opening an account in the Post Office has been negatived by the trial Court. One of the grounds for discarding that story is that Narinder Pal has failed to prove the fact that he was an agent of the Post Office. Admittedly, no document to prove the fact that Narinder Pal was an agent of the Post Office has been produced in the trial Court. The appellants have also filed an application u/s 391 Cr.P.C and while filing that application, no document has been placed on the file that Narinder Pal was the agent of the Post Office. The best evidence, in this case, was the documents issued by the Post Office but the same have not been produced in the trial Court and even in the Appellate Court while moving an application u/s 391 Cr.P.C. So, the stand taken by the appellants to the effect that an amount of Rs. 8,000/- was accepted by Narinder Pal for depositing the same in the Post office is only to avoid legal punishment. So far as submission made by the counsel for the appellants that there is no independent corroboration to the testimony of the complainant is concerned, the same is without any substance. Gurdial Singh, shadow witness who has no axe to grind against the accused has supported the case of the prosecution. So far as additional evidence is concerned, the same will not improve the case of the appellants, in the instant case, as discussed above. Even if all these documents are taken into account, they will only prove the fact that Rs. 18,000/- have been credited to the account of Dan Kaur on 7.6.1997 and she has withdrawn the amount in the month of June,1997 but according to the prosecution story, the complainant party was put in fear of criminal litigation on the ground that there was report of Senior Superintendent of police that Swaran Singh died due to personal enmity and not on account of terrorist activities. Authority in case Zahira Habibula H. Sheikh and Anr. (supra) is not helpful to the appellants. In that case, it has been held that where there is dishonest and faulty investigation and star witnesses are threatened, in that case, additional evidence can be allowed. There is no dispute with this proposition of law. In the present case, it is no body''s case that no opportunity was afforded to the defence. The evidence now sought to be produced was well within the knowledge of the appellants. Otherwise also, as discussed above, even if the entire evidence is taken into account, in that case, the case of the appellants will not be improved by the evidence sought to be produced. So, in these circumstances,application for additional evidence stands dismissed. Authority in case Purnandu Biswas (supra), is distinguishable as in that case, demand of illegal gratification was not held to be proved.

Authority in case Bir Singh (supra) lays down that it is the duty of the prosecution to examine all the independent witnesses. In the present case, the prosecution has examined all the material witnesses. So, the above-said authority does not advance the case of the appellants, in any manner. Authority in case Ganga Kumar Srivastava (supra), is also distinguishable as in that case, currency notes were not treated with Phenolphthalein Powder and the evidence was shaky. Therefore, the said authority is not applicable to the facts of the present case.

Authority in case Anand Parkash (supra), is also distinguishable as, in the present case, demand and acceptance stand established beyond reasonable doubt.

The learned Counsel for the appellants has submitted that PW-6 Randhir Singh, Clerk has stated in his crossexamination that the amount was paid to Narinder Pal for depositing in the Post Office and, on that count, the defence version is proved.

I have carefully considered the said submission but do not find any force in the same. The statement made by PW-6 Randhir Singh is against the record and as such cannot be given much importance. The learned trial Court has rightly discarded his testimony in cross-examination.

The learned Counsel for the appellants has further contended that the punishment is harsh. The appellants have undergone the agony of trial for a period of about 12 years. Raj Pal has been dismissed from service. So, a prayer has been made for reduction of sentence in case the Court is not inclined to accept the prayer for acquittal.

I have carefully considered the said submission. The occurrence relates to the year 1997. Raj Pal accused is stated to have been dismissed from service. Since then, the appellants are stated to have undergone mental agony. So, in these circumstances, the sentence of Raj Pal, accused under Sections 7 and 13(2) of the Act stands reduced to one year. The sentence of fine under Sections 7 and 13 of the Act and sentence of imprisonment and fine u/s 420 IPC in respect of Raj Pal accused stand maintained.

The sentence of Narinder Pal under Sections 8 and 13(2) of the Act also stand reduced to rigorous imprisonment for one year. His sentence of fine under Sections 8 and 13(2) of the Act and sentence of imprisonment and fine u/s 420 IPC recorded by the trial Court stand maintained. With the above modification, this appeal stands dismissed.

A copy of this judgment be sent to the trial Court for strict compliance.