Shadi Lal vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal filed by Shadi Lal and has been directed against the judgment and order dated 4.6.1991 passed by the Court of Special Judge, Hisar, who convicted the appellant Shadi Lal under Section 7 read with Section 13 of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/; in default of payment of fine the appellant was directed to further undergo rigorous imprisonment for six months.

The brief facts of the case are that a complaint originated on the report made to SubDivisional Magistrate, Fatehabad by Shri Prem Dass complainant that appellant Shadi Lal had made a demand of Rs. 1,000/ from him for allowing his son for copying in the matriculation examination, who was appearing at Senior Model School, Fatehabad centre under Roll No. 58440. The SubDivisional Magistrate obtained an affidavit of the complainant and directed him to appear before Deputy Superintendent of Police namely Shri Mahinder Singh Ahlawat. The said D.S.P. recorded the statement of the complainant and after completing the initial formalities, obtained five currency notes from the complainant, treated them with phenolphthalein powder and directed the complainant to approach the appellant and to hand over the money to him on demand. The D.S.P. also deputed Shri Laxmi Narain, B.D.O., Bhattu Kalan and Shri Varinder Jakhar, S.D.O. to act as shadow witnesses. He also directed these shadow witnesses to give a signal on receipt of indication from the complainant that the tainted money had been accepted by the accused. The complainant handed over the money to the accused and gave a signal to Shri Laxmi Narain, who further gave a signal to the waiting police party. The police party arrived at the scene and recovered five currency notes from the left pocket of the Kurta of the accused. The matter was investigated. The left and right hands of the accused were washed in a solution of sodium carbonate etc. The wash of the left pocket of the Kurta was also performed and it was preserved for test to be conducted by the Forensic Science Laboratory. After completion of the investigation and after obtaining the relevant sanction from the competent authority, the appellant was challaned under Section 7/13 of the Prevention of Corruption Act.

The copies of documents were supplied to the appellant and vide orders dated 13.3.1990 a formal charge under Section 7 read with Section 13 of the Prevention of Corruption Act was framed against the appellant of the allegations that on 12.9.1989 at Fatehabad he was caught redhanded during trap while he accepted a sum of Rs. 500/ as illegal gratification other than legal remuneration from Prem Dass son of Shri Shibu Ram as a reward in his public capacity in the exercise of his official functions while he was appointed as Superintendent for Matric/Senior Secondary School Examination 1989 held by the Board of School Education, Haryana at Senior Middle School, Fatehabad Centre for showing favour to examinee Khem Chand son of the complainant who was appearing in the said examination centre under Roll No. 58440. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Prem Dass (complainant) PW2, Smt. Prem Lata PW2, S.L. Kapur PW3, Khem Chand PW4, Laxmi Narain PW5, Varinder Jakhar, SDO PW6, R.S. Hans PW7, Ram Narain, ASI PW8, Tilak Raj, Draftsman PW9, O.P. Indora PW10, Pat Ram, HC PW11, Const. Des Raj PW12 and Investigating Officer M.S. Ahlawat PW13. The prosecution finally tendered into evidence the sanction order Ex.PN for prosecution of the appellant besides the report of Forensic Science Laboratory Ex.PO and closed the case.

The statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Appellant denied those circumstances and stated as follows :

"I am innocent. I have been involved due to party faction in the village. No recovery was effected from me nor any raid was conducted."

In defence the appellant tendered into evidence affidavits Ex.DC, Ex.DD and Ex.DE of Raj Kumar, Om Parkash and Ved Parkash respectively.

The learned Special Judge relied the story of the prosecution and rejected the defence version and convicted and sentenced the present appellant in the manner stated above and aggrieved by his conviction and sentence the present appeal which I am disposing of with the assistance rendered by Shri Ajay Lamba, learned counsel appearing on behalf of the appellant, Shri Salainder Singh, learned Deputy Advocate General, Haryana and with their assistance I have also gone through the record of this case.

It has not taken me long to formulate an opinion that the judgment of the learned Special Judge cannot be sustained in the eye of law because there was no meeting of minds between the complainant and the accused. There was no demand of the illegal gratification by the appellant nor there was any acceptance. Also it is not proved on the record that the alleged tainted money of Rs. 500/ was ever offered to the appellant by the complainant. When the very basic elements of acceptance and demand were missing, how the learned Special Judge could afford to record a conviction against the appellant. In this regard I would like to refer to the statement of PW1 Prem Dass, who was the complainant and was the initial maker of the entire show. The statement of Prem Dass PW1 can be quoted as follows :

"Khem Chand is my son. He appeared in supplementary examination for 10th class of Haryana Education Board in September, 1989. His examination centre was at Fatehabad. It was situated in the Senior Model School, Fatehabad.

I do not know the accused Sh. Shadi Lal present in court. I never met him. Some body else in between met the accused to help my son for copying. I did not personally approach the accused. Might be a man of Shadi Lal who had come to me. I was told by him to stand outside and he told me that he had settled the matter for Rs. 1,000/ (one thousand). I had told him that I was a sweeper and was a man of the Education Department itself and there should be some concession. That middleman went inside the office of the accused and the amount was reduced to Rs. 700/. I got enraged as I was a man of the Department and the money was being demanded from me. Then through some man I approached the SDM Fatehabad and complained to him. I complained against Shadi Lal accused present in court to the SDM and gave him affidavit. The affidavit Ex. PA was furnished by me to the SDM and I had stated correct things in this affidavit. Then I met Sh. Mahinder Singh Ahlawat DSP at Fatehabad. I had handed over Rs. 500/ each one of the denomination of Rs. 100/. The SDM Fatehabad and SDO, PWD (B&R) were also there when I handed over the currency notes. The currency notes were taken vide memo Ex. PB."

It has been further stated by Shri Prem Dass as follows :

"First of all, I tried to search out the middleman. Then I came across the accused in the school. The accused asked me as to why I was loitering. I told him that he was to meet the Superintendent Examination. Then the accused told me that he was the Superintendent. I then offered him Rs. 500/. The accused told me that he never demanded any money from any one and he did not know me. I persuaded the accused to have the money. I again told the accused that since the matter had already been settled that my son was to be allowed copying and for which he had agreed, therefore, he should accept money. When myself and the accused were talking like that, the police came and took the money from my hands."

If this is the substantive statement of the complainant, how the learned Special Judge came to the conclusion that there was a demand from the side of the appellant or he accepted the money. According to the statement of the complainant, the tainted money never exchanged hands with the complainant, rather all the times it remained with the complainant itself. Prem Dass was declared hostile by the prosecution. Even in the crossexamination the witness has not been able to establish that there was a meeting of minds between him and the accused or that accused made a demand, upon which he allegedly parted the money to him. The witness was confronted with his statement, but in spite of the fact that opportunity to crossexamine this witness was given, nothing has come out. The complainant rather has admitted in his crossexamination "The accused never demanded any money from me nor did he take any money from me. I do not know if the money was obtained from the accused in the office of the DSP who involved him falsely." The cross examination further indicates that at one point of time even the learned Special Judge wanted to prosecute the complainant under Section 193 IPC and for that reason the Court formulated the present question in the shape of court question "Why you should not be prosecuted u/s 193 IPC for giving contradictory version to the version given in the affidavit Ex. PA." To this question the answer of the complainant was very unsatisfactory when he stated "I have not given any contradictory evidence to the affidavit." Rather he insisted that whatever he stated in Court was the correct version. In this view of the matter, the reliance cannot be placed on the testimony of Laxmi Narain PW5 and Varinder Jakhar PW6 whose statements must have influenced a lot to the learned Special Judge who recorded the conviction and sentence. Even Khem Chand, son of the complainant, has taken the winds from the sail of the prosecution by stating as follows :

"However, Shadi Lal had not called me on 9.9.89 asking me to bring my father for copying and for the arrangement. The accused did not tell me that I was allowed to copy from the other students on 12.9.1989."

This witness was also declared hostile. There appears to be a false motive on the part of the complainant and his son to falsely implicate the appellant as PW4 Khem Chand has admitted in the crossexamination that a chit was lying near him and he was involved in that because of copying by the Flying Squad.

Supplementing his submission Shri Ajay Lamba relied upon G.V. Nanjundiah v. State (Delhi Administration), 1998(1) C.L.R. 595 and submitted that once the evidence of the prosecution with regard to demand is found to be unreliable, the benefit of doubt should go to the accused and in these circumstances the appellant should be acquitted. The ratio of the Hon''ble Supreme Court is applicable to the facts in hand. Similar observations were also made by this Court in Sudershan Kumar v. State of Haryana, 1995(2) Recent CR 325, where it was held by his Lorship that where the proof of demand is unsatisfactory, the conviction cannot be based on the public servant. In the cited case the complainant was not examined in the trial Court. In the present case the complainant has been examined but he has not supported the allegations of the prosecution having the same effect as if he was never inclined to support his allegations.

In view of the above, I allow this appeal, set aside the judgment and order of the learned Special Judge and acquit the appellant of the charge framed against him.