State of Himachal Pradesh vs Hemant Kumar

Kuldip Singh, J.—The acquittal of the respondent by Special Judge, Kangra at Dharamshala on 30.4.2011 in Corruption Case No. 6-I/2007 has been assailed by the State in the present appeal.

The prosecution case in brief is that the complainant PW-13 Chandan Chauhan wanted to raise loan for development of his land, he approached the respondent, who was the manager of Himachal Gramin Bank, Badhukar. The respondent asked PW-13 to get the land mortgaged with the bank, which was done by the complainant vide mortgage deed Ex. PW-13/B. The legal opinion-cum-search report Ex. PW-13/C, affidavit Ex. PW-13/D and power of attorney of other co-sharers Ex. PW-13/E were obtained. The allegation is that PW-13 approached the respondent several times in the past two months prior to the registration of the case, for sanctioning the loan but without any positive result.

On 3.4.2006 PW-13 again visited the bank, the respondent asked PW-13 to give Rs. 10,000/- and only thereafter the loan would be sanctioned. The complainant never wanted to bribe the respondent, he brought to the notice of his friend PW-14 Rahul Dev the demand raised by the respondent for sanctioning the loan. PW-13 and PW-14 on 4.4.2006 visited the Vigilance office and thereupon FIR Ex. PW-13/A was registered. PW-16 Ompati Jamwal, Investigating Officer gave demonstration of trap and allied procedure to be adopted. PW-13 handed over Rs. 10,000/- currency notes in the denomination of Rs. 500/- each to the Vigilance police which were treated with phenolphthalein powder and handed over to PW-13 complainant with the direction to hand over the said currency notes to the respondent on demand.

The raiding party consisting of PW-16 Ompati Jamwal, PW-1 R.P. Shandilya, Tehsildar, Jawali, PW-3 Inspector Baldev Ram, PW-4 H.C. Suresh, PW-13 Chandan Chauhan, PW-14 Rahul Dev, shadow witness was constituted and proceeded to the office of the respondent. PW-13 Chandan Chauhan reached the bank and handed over the bribe money to the respondent on demand. PW-5 Surinder Pal, BDC Member, PW-2 Joginder Singh, Ward Member were also associated as spot witnesses. On receiving signal from PW-14 Rahul Dev, shadow witness, the police party rushed to the spot, on seeing the police, the respondent stood up from the chair and 18 currency notes were found lying on the chair of the respondent alongwith loan file of PW-13 complainant, two notes were found lying on the floor.

The Investigating Officer made arrangement of water and the solution of sodium carbonate was prepared with which the hands of the respondent were washed and the colour of the solution turned pink which was collected into a nip Ex. P-22. The recovered currency notes Ex. P-2 to Ex. P-21 were tallied with the already prepared memo and seizure memo was prepared. The Investigating Officer before starting the proceedings gave his personal search to the witnesses in the presence of the respondent. The spot map Ex. PW-16/A was prepared. The respondent was arrested. The statements of the witnesses were recorded. Ex. PW-7/C sanction to prosecute the respondent was obtained and on completion of investigation challan was presented in the Court.

The respondent was charged for offence punishable under Sections 7 and 13(2) of Prevention of Corruption Act, 1988 (for short ''Act''). The respondent denied the charge and claimed trial. The prosecution has examined 16 witnesses and produced some documentary evidence. The statement of respondent was recorded u/s 313 Cr.P.C. He denied the prosecution case. The respondent examined DW-1 Ranjit Singh Thakur, Manager, Himachal Gramin Bank, Badukhar in defence. On conclusion of trial, the Special Judge, Kangra at Dharamshala acquitted the respondent, hence appeal.

I have heard learned counsel for the parties and have also gone through the record. The learned Additional Advocate General has submitted that the Special Judge while acquitting the respondent has misconstrued and misinterpreted the evidence, the inference drawn by the Special Judge from the evidence is wrong. The prosecution has proved the case against the respondent beyond reasonable doubt. He has submitted for setting aside impugned judgment and for conviction and appropriate sentence to the respondent. The learned counsel for the respondent has supported the impugned judgment. He has submitted that the Special Judge has properly appreciated the evidence and only thereafter when he found that the prosecution has failed to prove the case, the respondent has been acquitted. He has submitted that the prosecution has miserably failed to prove the case.

Ex. PW-13/A is FIR dated 4.4.2006 registered at Police Station, AC Zone, Dharamshala at the instance of PW-13 complainant Chandan Chauhan. Ex. PW-1/A is the recovery memo of currency notes witnessed by PW-1 R.P. Shandilya, PW-2 Joginder Singh, PW-5 Surinder Pal, PW-14 Rahul Dev and PW-13 Chandan Chauhan. Ex. PW-2/C is the search memo of PW-16 Ompati Jamwal witnessed by PW-2 Joginder Singh and PW-5 Surinder Pal. Ex. PW-2/B is the search memo of respondent witnessed by PW-2 Joginder Singh and PW-5 Surinder Pal and also signed by PW-1 Ram Pratap Shandilya. Ex. PW-7/C is the sanction order dated 19.7.2007 of the Chairman, Himachal Gramin Bank for prosecuting the respondent. Ex. PW-10/A is the FSL report. Ex. PW-16/A is the spot map. Ex. PW-13/B is the mortgage deed dated 28.2.2006, Ex. PW-13/C is the legal opinion-cum-search report dated 27.2.2006 of P.S. Jaggi, Advocate addressed to the Manager, Himachal Gramin Bank, Badhukar. Ex. PW-13/D is the affidavit of PW-13 Chandan Chauhan.

There is no dispute that at the relevant time the respondent was posted as Branch Manager, Himachal Gramin Bank, Badhukar. In order to appreciate the arguments addressed on either side, it is necessary to refer to the relevant evidence which has come on record. PW-1 R.P. Shandilya was Tehsildar, Jawali in the year 2006. He was a member of the raiding party. He has stated that 18 currency notes in the denomination of Rs. 500/- were found on the chair of the Manager and two notes under the table. The colour of the hand-wash of the respondent turned pink. He has stated that memo Ex. PW-1/A bears his signatures as well as signatures of Surinder Pal and one Panchayat Member. In cross-examination, he has stated that when he entered the room, the accused was telling that he was implicated falsely. PW-2 Joginder Singh has stated that when he visited the bank, two currency notes of Rs. 500/- denomination were lying on the table and remaining currency notes were lying on the ground. The police prepared the seizure memo Ex. PW-1/A which was signed by him and other witness Surinder Pal. He was declared hostile. In cross-examination, conducted by the prosecutor, he denied that 18 currency notes were lying on the floor of the bank and two currency notes were on the table of the accused. He initially refused to sign as the proceedings had not been conducted in his presence.

PW-3 Baldev Ram, Inspector has stated that he caught hold the respondent from his right wrist and Dharam Chand from left wrist, Prithi Pal Singh brought Surinder Singh, BDC member and Joginder Pal, Ward Member. 18 currency notes in the denomination of Rs. 500/- were on the chair of the accused and two currency notes were found on the ground near the table. In cross-examination by the defence, he has stated that no phenolphthalein was taken up by Dy. S.P. He admitted that the entire bank was in one room. PW-4 H.C. Suresh Chand has stated that 18 currency notes in the denomination of Rs. 500/- were found on the chair and two were found under the table. In cross-examination, he has stated that when they entered the bank, one peon was present in the bank. He has said that there was no separate cabin for the Branch Manager. Phenolphthalein and sodium carbonate powder were with Head Constable and they were not in sealed condition.

PW-5 Surinder Pal has stated that on 4.4.2006 at about 4.30 p.m. when he reached the bank, he was told that notes had been recovered from the accused. He had seen two notes on the table and 18 notes on the floor which were in the denomination of Rs. 500/-. He was declared hostile and was cross-examined by the prosecutor. Ex. PW-1/A was being prepared when he reached the bank. He denied that 18 notes were lying on the table and two on the floor. PW-6 Kartar Singh has stated that in the year 2006 he was Bank Officer in Dari Branch. He has also stated that if the applicant is bank defaulter then he cannot be granted loan. PW-7 Ishwar Dass has proved sanction order Ex. PW-7/C. PW-10 Gurdial Singh has stated that in the year 2006 he was the Chairman of Himachal Pradesh Gramin Bank and he had granted the prosecution sanction Ex. PW-7/C. PW-11 Dr. Vijay Singh Jamwal has proved FSL report Ex. PW-10/A.

PW-13 Chandan Chauhan has supported the prosecution case and proved FIR Ex. PW-13/A. At the demonstration stage he was asked to hand over the currency notes to the Manager of the bank on his demand. At about 4.30 p.m. he visited the bank. On the asking of the respondent, he handed over the loan documents and Rs. 10,000/- to the respondent. This was seen by Rahul Dev. The employee of the bank saw Rahul Dev and on this the respondent threw the currency notes from his table. The police came on the spot. The police took into possession currency notes 18 which were lying on the table and two which were on the floor. The seizure memo Ex. PW-1/A was signed by him, Rahul Dev and local witnesses. In cross-examination, he has stated that he had earlier taken the loan from the same bank. He admitted that accused had asked him to pay the outstanding loan. He admitted that a case under NDPS Act was registered against him in Punjab. He denied that the respondent knew about his previous loan, therefore, the respondent refused to grant fresh loan to him. He had told the police about the previous loan.

PW-14 Rahul has stated that complainant Chandan Chauhan had talked to him regarding taking of loan from Badhukar bank. On 3.4.2006 Chandan Chauhan told him that the respondent was demanding Rs. 10,000/- for releasing the loan. On the following day, he accompanied Chandan Chauhan to Dharamshala to the Vigilance Police Station. Chandan Chauhan reported the matter to the police. Chandan Chauhan went inside the bank and he remained outside the bank. When the accused accepted the amount he was standing outside the bank from where he could see the respondent accepting the money. On accepting the bribe by the accused, he gave signal to the police party. The police came in the bank. He did not return to the spot. No recovery was effected in his presence. He was declared hostile and was cross-examined by the prosecutor. He has stated that no signatures were obtained by the police from him during investigation. He denied his signatures on Ex. PW-1/A, Ex. PW-4/A and Ex. PW-4/B. He has studied upto 5th class. He has not studied English.

PW-15 Jodha Mal in the year 2006 was posted Inspector in A.C. Zone, Dharamshala. He partly investigated the case. PW-16 Ompati Jamwal was posted Dy. S.P. Vigilance, Dharamshala in the year 2006. He headed the raiding party. He has stated that when shadow witness gave indication, he alongwith other officials and Tehsildar entered the bank. Surinder Kumar and Joginder Singh witnesses were also associated. 18 currency notes were lying on the chair of the bank manager alongwith the file of the loan of the complainant and two notes were lying on the floor. He has proved spot map Ex. PW-16/A. He recorded the statements of witnesses. When the complainant came to Police Station, he had brought the file alongwith mortgage papers with him. He denied that when he reached inside the bank premises Chandan Chauhan had complained to him of having been beaten by the respondent. He has denied that the respondent was falsely implicated.

The respondent in his statement u/s 313 Cr.P.C. has denied the prosecution case. He has stated that he had refused the loan to the complainant on account of his previous unpaid loan. The complainant out of vengeance falsely implicated him. DW-1 Ranjit Singh Thakur, Manager, Himachal Gramin Bank, Badhukar has proved Ex. DW-1/A statement of account of Chandan Chauhan son of Sh. Balram Dass showing that an amount of Rs. 75000/- was given on loan to Chandan Chauhan on 12.5.2005 by the bank and on 29.6.2006 as against the said loan an amount of Rs. 82,255/- was payable by Chandan Chauhan to Himachal Gramin Bank, Badhukar.

It emerges from the statement of PW-13 Chandan Chauhan complainant that PW-14 Rahul Dev was also nearby Himachal Gramin Bank, Badhukar on 3.4.2006 at about 4.30 p.m. He has stated that on demand of respondent he had handed over Rs. 10,000/- and loan documents to the respondent. The police took into possession 18 currency notes which were lying on the table and two currency notes which were on the floor. The close scrutiny of the statement of PW-13 complainant in view of other evidence does not inspire confidence.

PW-1 R.P. Shandilya has contradicted PW-13 when he has stated that 18 currency notes in the denomination of Rs. 500/- each were found on the chair of the manager and two notes under the table. PW-2 Joginder Singh was declared hostile and in the cross-examination conducted by the prosecutor, he denied that 18 currency notes were lying on the floor and two currency notes on the table of the accused. PW-3 Baldev Ram, PW-4 HC Suresh Chand and PW-16 Ompati Jamwal have deposed that 18 currency notes were on the chair of the accused and two currency notes were found on the ground near the table. PW-5 Surinder Pal has stated that he was told that notes had been recovered from the accused. He had seen two notes on the table and 18 notes on the floor. He was also declared hostile. PW-14 Rahul, shadow witness has stated that no recovery was made in his presence. He was declared hostile. Thus, there is no uniformity in the statements of various witnesses from where 20 currency notes of Rs. 500/- denomination each were recovered.

Ex. PW-16/A is the spot map which indicates that Badhukar branch of Himachal Gramin Bank had only one room. PW-3 Baldev Ram has stated that entire bank was in one room. PW-4 H.C. Suresh Chand has stated that there was no separate cabin for the Branch Manager. In Ex. PW-16/A in the spot map point ''D'' has been shown where two currency notes on the ground were lying. In Ex. PW-16/A the place where 18 currency notes of Rs. 500/- denomination each were lying has not been shown. In one room bank various points have been marked showing the sitting arrangement of the bank officials. The raid was conducted at about 4.30 p.m. but surprisingly, no official of the bank was associated in the raid and joined as a witness nor any explanation has been given why any official of the bank was not associated as a witness.

The spot map Ex. PW-16/A does not support the prosecution case that 18 currency notes of Rs. 500/- denomination each were recovered lying either on the chair or table of the respondent. PW-4 H.C. Suresh Chand has stated that phenolphthalein and sodium carbonate were with Head Constable and they were not in sealed condition. PW-16 has stated that if smallest quantity of phenolphthalein comes in contact with sodium carbonate its colour would turn pink. Therefore, the prosecution cannot take advantage that hand-wash of respondent at the time of raid turned pink.

The prosecution witnesses are not firm regarding the place of recovery of 20 currency notes of Rs. 500/- each and for the same reason recovery memo of currency notes Ex. PW-1/A cannot be accepted to return the finding of recovery of 20 currency notes of Rs. 500/- denomination each from respondent. Moreover mere recovery of cash is not enough unless demand is proved. The prosecution story appears to be improbable inasmuch as it has come in the evidence that on 3.4.2006 there was already outstanding unpaid loan in the name of complainant which was extended by Himachal Gramin Bank, Badhukar. PW-13 Chandan Chauhan complainant in his statement has admitted that he had taken another loan from the same bank. He has also admitted that the respondent had asked him to pay the outstanding loan. DW-1, Manager, Himachal Gramin Bank, Badhukar has proved Ex. DW-1/A loan account of PW-13 Chandan Chauhan complainant which shows that Rs. 75000/- loan was given to complainant on 12.5.2005 and in that account on 29.6.2006 an amount of Rs. 82,255/- was due and payable by the complainant to the bank.

DW-1 has stated that if a person has outstanding loan amount then he cannot demand new loan. In the teeth of these facts, another loan could not have been extended by Himachal Gramin Bank, Badhukar to the complainant. Therefore, the respondent being the manager of that bank could not help the complainant for disbursing another loan, even if he wanted to help him. The second loan could not have been extended to the complainant as he had not cleared the previous loan, therefore, there was no question of extending new loan to the complainant by the respondent. The disbursal of new loan to the complainant in presence of previous outstanding loan in the name of complainant would have attracted stern action and may be disciplinary action by the management against the respondent which he would have never invited in the presence of documentary material. In these circumstances, the prosecution story that for extending loan to the complainant, the respondent had demanded Rs. 10,000/- as bribe money is unbelievable.

Ex. PW-13/C legal opinion-cum-search report dated 27.2.2006 and Ex. PW-13/B mortgage deed dated 28.2.2006 are suspicious documents. The prosecution has not produced any application or document indicating how loan case of the complainant was initiated by the bank or respondent. The prosecution has not placed on record any letter of the bank or respondent asking legal opinion-cum-search report from P.S. Jaggi, advocate nor that advocate has been examined as a witness by the prosecution. Similarly, there is no explanation from the prosecution under what circumstances Ex. PW-13/B mortgage deed dated 28.2.2006 came to be executed when no initial paper for initiating the loan case of the complainant was moved by the bank. Therefore, the prosecution cannot take advantage of legal opinion-cum-search report dated 27.2.2006 and mortgage deed dated 28.2.2006 to prove the guilt of the respondent.

The complainant has admitted in his statement that a case under NDPS Act was registered against him in Punjab, therefore, it is not safe to accept his version without corroboration. The evidence led by the prosecution on demand and recovery of Rs. 10,000/- bribe money from the respondent is not of that character which can be relied to convict the respondent for the offence he has been charged. The prosecution has failed to discharge its onus, therefore, Section 20 of the Act is of no help to the prosecution to record conviction of the respondent. The trial Court has considered the evidence and ably appreciated the same and recorded the finding of acquittal in favour of the respondent. It is settled law that merely another view is possible is no ground to convert the acquittal into conviction in appeal. There is no perversity in the impugned judgment. The prosecution has failed to bring home the charge by leading cogent and trustworthy evidence. The findings recorded by the trial Court while acquitting the respondent cannot be faulted. There is no merit in the appeal. In view of above, the appeal fails and is accordingly dismissed. The bail bonds of the respondent are discharged.