Roshan Lal vs The Punjab State

Amar Dutt, J.—Appellant Roshan Lal is aggrieved by the conviction and sentence recorded against him by the Special Judge, Ferozepur on 6.12.1991.

The case against the appellant was registered on the statement of one Mulkh Raj son of Sher Chand, who had taken a contract to clean Basti Tankanwali and Bharat Nagar (basti Bhattianwali), Ferozepur City for Rs.60,400/-. For this purpose, he had deposited a security of Rs.1,000/- with the Municipal Committee, Ferozepur City. The contract was for four months and after completing the work, Mulkh Raj had been paid all the amounts due to him except the security money. For this purpose, he had moved an application in the office of the Municipal Committee. He had met the Executive Officer and was told to visit the office after few days. When he went there again, he came to know that the appellant, who was a Senior Auditor in the Municipal Committee was to pass the bill and he had raised some objections. On 23.5.1988, Mulkh Raj had met the appellant in his office and there the appellant had demanded Rs.400/- for passing the bill and on the request being made by Mulkh Raj on the ground that he was a poor man, a settlement had been arrived at which required Mulkh Raj to pay only Rs.200/-. Mulkh Raj had promised to pay the amount after some days but since he did not like the idea of giving a bribe, he had on 25.5.1988 gone to the office of the Vigilance Inspector, Ferozepur and met Inspector Tara Chand Sharma. This officer had recorded the statement of Mulkh Raj, who had signed the same in token of its correctness and thereafter Mulkh Raj had delivered two note of Rs.100/- denomination each to the Inspector Vigilance, who had stained the currency notes with phenolphthalein powder and returned the same to Mulkh Raj vide memo Ex.PG with a direction to give the same to the accused when he demand the same. Constable Sahib Singh was directed to act as a shadow witness and accompany Mulkh Raj and to give signal once the bribe money had been paid to the appellant. A ruqa incorporating all this was sent to the Police Station and on its basis a case was registered against the appellant. After this, according to the plan, Mulkh Raj had paid the money to the appellant where-after the appellant was caught red handed and two currency notes each of Rs.100/- denomination were recovered from the pocket of the shirt worn by the appellant. During the investigation, it was brought out that these were the notes which had been received by the accused from Mulkh Raj as bribe money. On completion of investigation, a challan was put in Court.

The Special Judge framed charges under Sections 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and u/s 161 of the Indian Penal Code against the appellant. As the appellant pleaded not guilty to the charges framed against him, the prosecution was called upon to examine evidence in support of its case.

In order to bring home charges against the appellant, the prosecution examined Hans Raj PW1, Shanti Saroop PW2, Yash Raj Goel PW3, Mulkh Raj PW4, Addl.MHC Sahib Singh PW5 and DSP Tara Chand PW6.

When the statement of the appellant was recorded u/s 313 of the Code of Criminal Procedure for obtaining his explanation regarding the incriminating circumstances appearing in the prosecution case against him, he pleaded innocence and stated as under:

"I am innocent. After my posting at Ferozepur, I started working as Senior Auditor and I was to pre-audit the Bills of Municipal Committee, Ferozepur and as when ever I found any mistake or any irregularity in the bills I used to make objections and issue requisitions and for this the Municipal employees and officials are not happy with me and my working. They had kept grouse in their mind. Executive Officer, Municipal Committee, Sh.Yash Pal Goel had two telephones one in the office and other in the residence. Both were having straight Trunk Dialing (STD) facilities. As there were excess calls in many bills, I issued requisitions calling the Executive Officer Sh.Yash Raj to deposit the payment for excess calls including the excess calls numbering four hundred and twenty calls in one bill.

I issued requisition No.52 dated 30.3.88 as to why the National Saving Certificates were not purchased from the Sub Post Master, Ferozepur City and why the voucher has been changed in favour of Cashier, Municipal Committee, Ferozepur from that Sub Post Master, Post Office, Ferozepur City. In the said requisition it was written that a forgery has occurred and needs investigation and the result be intimated to the audit for necessary action. This has been done to receive the commission.

I issued requisition 47 to 3.3.88 asking the Executive Officer Sh.Yash Raj Goel to take action under the rule XVII. 18 of the Municipal Account Code, 1930 against water rate clerk, as she has embezzled rupees 252.80 and in that regard as no action was taken I made report to Administrator on 10.3.1988 that the Executive Officer has not taken any action in this regard and asked for suitable action at his personal level, so that the record may not be tampered. The Executive Officer on 3.5.1988 censured Amarjit Kaur in that regard. I made an objection to this order of Executive Officer on 19.5.1988 as it is irregular to decide the case of embezzlement without the sanction of Director Local Govt. in consultation with the Examiner Local Fund accounts laid in rule XVII. 18 afore mentioned.

On 10.2.1988, I made a requisition calling upon the Executive Officer, as to why the car PUD 32 was not got repaired from Ferozepur or near Station of Ferozepur. Log book showed 32 1/2 liter of petrol in the tank and moved to Malout and remained there upto 13.1.1988. The entry in the log book is that it was consumed at the time of repair. I objected that the entry is not genuine and the cost be recovered from the official concerned.

I also made objection as to full payment of pay to Sh.Gurmukh Singh Driver for suspension period. As such the Municipal staff and Executive Officer is annoyed with me.

I have to pre audit the Bills and have no connection with the preparation of the cheque or the delivery of the cheque. It is to be prepared and delivered by the Municipal staff. I passed/pre-audited the previous four bills for Rs.15100/- each of Mulkh Raj.

Mulkh Raj PW is son-in-law of Charan Dass, brother of Subhash, President Sweeper Union MC Ferozepur. Subhash is very close to Executive Officer Yash Raj Goel and Tara Chand Vigilance inspector. Tara Chand was also availing the STD Telephone facility of the Executive Officer, Ferozepur and got me involved in this false case.

The bill was pre-audited on 23.5.1988 and I was on leave on 24.5.1988. After the pre-audit the file never comes to me and then it is dealt by Municipal authorities, which prepare the cheque and delivered the same. I have nothing to do with the cheque or its delivery.

Mulkh Raj is not registered contractor of Municipal Committee, Ferozepur and he is a stooge of Subhash President, Sweeper Union who in fact was the contractor and close friend of Yash Raj Goel, Executive Officer. On the day of occurrence at 12.30 p.m. I was coming out of the office when Mulkh Raj forcibly thrusted the money in my pocket. I was taking out the money to throw it away, in the meantime Tara Chand and the Vigilance Staff came and forcibly took me and put me in the jeep and took me to the Police Station City, Ferozepur where all the documents were fabricated and involved in this false case. I have neither demanded nor accepted any money."

In defence, the appellant examined Jaswant Singh as DW.1.

The trial Court, after hearing arguments, came to the conclusion that the prosecution case against the appellant has been proved beyond reasonable doubt and, therefore, convicted him u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for three months. He was further convicted u/s 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Both the substantive sentences of imprisonment were ordered to run concurrently.

No one had put in appearance on behalf of the appellant despite a specific notice having been issued in the cause list and, therefore, I had no option but to hear arguments and with the assistance of Mr.Jayender S.Chandail, have gone through the record myself.

The case against the appellant is built up around an assertion made by Mulkh Raj to the effect that on 23.5.1988, the appellant had demanded an amount of Rs.400/- as bribe and virtually settled for doing a work of refunding a security amount of Rs.1,000/ - that was lying with the Municipal Committee in case the complainant pay an amount of Rs.200/-. The appellant was working as a Senior Auditor, who was required to pre-audit all payments. From the cross-examination of Shanti Saroop PW2, it appears that orders for refund of security amount were passed by the Executive Officer on 5.5.1988 where after the papers were taken to the appellant on 6.5.1988 on which he raised an objection Ex.PC/1. The objections were removed and put up again before the appellant on 23.5.1988 and was passed by him on that date. Thereafter, the application Ex.PB and the voucher Ex.PC were sent to the Account Branch for preparation of the cheque with which the appellant had no concern. The witness further stated that "it is not the duty of the Auditor to deliver the cheque to the person concerned. After issuance of the cheque the relevant file is not submitted to the Auditor." The witness has admitted the assertion made by the appellant that he had been raising unpleasant objections regarding functioning of the Municipal Committee. Even the Executive Officer admitted that "the accused was only to pre-audit, the voucher. After the pre-audit the cheque was to be prepared by the Accounts Branch of the Committee".

In these circumstances, when the appellant had already done his work on 23.5.1988 and nothing remained to be done by him, it is inconceivable that he would ask Mulkh Raj to pay a sum of Rs.400/- for release of an amount, the payment of which had already been sanctioned by him as there was no way in which he could have recalled the order. As already indicated by me, from the prosecution evidence itself, it is clear that the appellant, who was a Senior Auditor had nothing to do with the payment once the pre-audit had been done. The cheque was prepared by the Accounts Branch and the delivery was also made by that Branch. The story now put forth by the prosecution is palpably false and cannot be accepted.

For the reasons recorded above, the appeal is accepted, the conviction and sentence of the appellant is set aside and he is acquitted of the charges framed against him.