Ajit Singh vs State of Punjab

A.N. Jindal, J.—The accused-appellant (herein referred as ''the accused'') was allegedly caught red handed while receiving Rs. 600/- on account of illegal gratification and as such was prosecuted for the offences under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (herein referred as ''the Act'') and was convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/- each for the said offences.

The facts in brief are that complainant Nishan Singh complained to Mohinder Singh Deputy Superintendent of Police, Vigilance Bureau, Amritsar (herein referred as the Investigating Officer) that he and his brother Gursharan Singh, after purchasing the land measuring 14 kanals 15 marlas from Pargat Singh vide sale deed dated 17.06.1996, wanted to get the mutation sanctioned in their favour on the basis of the sale deed, therefore, he visited the accused (patwari) at Ghariala, alongwith photo copy of the sale deed, however, he demanded Rs. 1,000/- for serving the purpose but the bargain was struck at Rs. 600/-. However, he did not want to pay bribe, therefore, he contacted the Investigation Officer and made the statement, on the basis of which a case was registered against the accused.

The complainant handed over six currency notes in the denomination of Rs. 100/- each which were smeared with phenol phthalein powder and the Investigating Officer, after insuring that the complainant was not carrying any other tainted money with him, handed over, the tainted money to the complainant and directed him to hand over the same to the accused on demand and not to shake hands before or after exchange of the bribe money. Jatinder Tej Singh was nominated as a shadow witness. He was instructed to overhear the conversation between the complainant and the accused regarding the demand and acceptance of the bribe and then to signal to the raiding party by putting his hand over his head. Shiv Dial, Junior Engineer of Public Health Department was also associated in the police party as an official witness. On reaching village Ghariala, the complainant and the shadow witness were sent to the office of the accused where on demand of Rs. 600/- from the complainant, the later handed over the money. The shadow witness signalled the police whereupon the Investigating Officer alongwith other police officials raided the accused. At this, the accused after taking out the money from his pocket, threw on the table lying in front of him. After showing the identity, the Investigating Officer caught hold the accused from his arms and got his hands washed in a solution of sodium Carbonate whereupon its colour turned pink. Pink solution was poured in a nip and was sealed with the seal bearing impression "KS" and was taken into possession vide a separate memo. The tainted currency notes were also recovered from the table lying in front of the accused. The personal search of the accused was also conducted. The pocket of the shirt of the accused was also washed in a sodium Carbonate and the colour of the solution turned pink. The pocket of the shirt of accused was also washed in a sodium Carbonate and the colour of the solution turned pink. The pink solution of the pocket wash was also put in a separate nip and was sealed with the impression ''KS''. Certain record was also seized from the spot. On receipt of the report of Forensic Science Laboratory, the challan against the accused was presented. He was charged for the aforesaid offences to which he pleaded not guilty and opted to contest.

In support of the allegations, the prosecution examined 11 witnesses besides producing documentary evidence.

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He produced copies of the revenue record Ex.D1 to Ex.D5 and closed his defence evidence. The trial ended in conviction.

While assailing the judgment, learned Counsel for the appellant has raised multiple contentions. He has urged that PW2 Shiv Dial, recovery witness, has not supported the prosecution case. The witnesses are discrepant regarding the recovery of the currency notes. The allegations with regard to the demand and acceptances stand not established as the mutation which the complainant wanted it to enter, was already got entered by the accused, therefore, there was no occasion to demand Rs. 600/- and accept the same.

Having heard the rival contentions, in order to support the prosecution version with regard to demand and acceptance, the complainant while stepping into the witness box had the courage to depose that he and his brother having purchased the land vide sale deed dated 17.03.1998, had gone to the accused Ajit Singh to get the mutation entered and sanctioned for which the accused demanded Rs. 1,000/- whereupon the bargain was settled at Rs. 600/-. He had disclosed this fact to Jatinder Tej Singh, who has duly supported the fact with regard to raising of the demand by accused prior to the acceptance of the money which is the necessary ingredient for completion of offence u/s 13(2) of the Act. He further disclosed that on complaining his grievance before D.S.P. (Vigilance), he came in action. Mohinder Singh, DSP (Vigilance), has also supported this allegation made by Nishan Singh. PW2 Shiv Dial, while testifying that Nishan Singh came to him and disclosed that accused was demanding illegal gratification of Rs. 600/- from him for entering of the mutation. These witnesses were cross-examined at length and withstood the test of reliability and trustworthiness. As such, the fact regarding the demand of Rs. 1,000/- from the complainant and about the bargain being struck at Rs. 600/- stand proved which initiated the investigating officer to organize the raid. Learned Counsel, in order to defend the case of appellant, has taken me through the copy of the mutation and urged that the mutation was already entered by the accused before the demand was made. Having gone through the statement of witnesses as well as mutation register containing mutation No. 4078, it is revealed that though other entries bear the date yet the disputed mutation does not bear any date. Therefore, it cannot be said that this mutation was already entered before the accused went to him with the tainted money. If it was so, then it was not in the knowledge of the complainant that the accused had entered the mutation earlier. No sane person would implicate a public servant for such a crime unless he is pasteurized by him on that account. Had he entered the mutation then he would have immediately disclosed to the complainant. There may be another possibility that since Nishan Singh-complainant had already left the copy of the sale deed and the copy of the power of attorney with the accused and the amount had already been settled and it was also stipulated that it would be paid on 05.05.1997, therefore, the accused having been assured about the payment may have entered the mutation in his register and kept it undated and closely guarded secret with a motive to extract the money from him.

The receipt of gratification must be a motive or reward to do an official act. The words ''motive'' referred to a future act and ''reward'' applied to a past service. The receipt of illegal gratification is a motive or reward for doing an official act as forbidden under law. The mutation must have been entered after the demand was raised and the bargain was settled but no date was to be mentioned after receiving the amount. There is nothing to show that the accused had made known to the complainant that he had already entered the mutation and he is to pay the amount but I would go a step further. Since the mutation does not bear any date, therefore, in all probabilities, this entry may have been made in the register with the connivance of the persons best known to the complainant.

As regards the next contention that the recovery of money was not effected from the pocket of the accused but the same was effected from the table, as such the prosecution case stands demolished. Prosecution case from the very beginning is that the accused after receiving the tainted money had put the same in his pocket but on seeing the police party he had taken out the money and threw it on the table. The hand wash and the pocket wash of the accused had given positive results. The report made by the Forensic Science Laboratory Ex.PX reveals that Sodium ions, Carbonate ions and Phenolphthalein contents were found of the nips. These are the significant circumstances which may indicate that the accused had actually received the tainted money, put the same into his pocket and under fear, he without wasting anytime, threw the tainted money on the table from where recvery was effected. Shiv Dayal, Junior Engineer (PW2) has corroborated the testimony of the complainant while testifying that on signal being raised by the shadow witness, they reached the spot and apprehended the accused. The accused was made to wash his hands and pocket of the shirt in the mixture so prepared and the colour of the solution became pink. The testimonies of these two witnesses have been corroborated by Mohinder Singh, an Officer of the rank of D.S.P. All of these witnesses had no bias, enmity or animus against the accused for implicating him in the false case.

Now coming to the testimony of Jatinder Tej Singh (PW9), who was declared hostile, it may be observed that despite the hostility of a witness, his evidence could be scrutinized and used against the accused. He has admitted in his statement that the accused had disclosed the entire episode to Mohinder Singh, DSP, regarding the demand and about handing over a sum of Rs. 600/- to him. However, he tried to resile only with regard to the denomination of the currency notes but he has admitted that on over hearing of the demand made by accused and handing over the money by the complainant, he had signalled the police party. This witness has also admitted his signatures on the recovery memo, as such, his testimony consistent with other evidence in material particulars. Worst is the experience with regard to independent witnesses, once they join the police party, thereafter, they tried to give twist to their previous statements by resile from their earlier statements. It is, obviously, for the diversity of reasons viz. social pressures or other material gains knowing fully well that there was no legal sanction to proceed against them if they resile. Many things including mercy upon wife, children or parents of the accused be the cause to resile from the previous statements. Consequently, the Courts have to look for other evidence in order to reach the truth. There is no hard and fast rule that the conviction cannot be ordered on the basis of the testimonies of complainant and the other official witnesses. The only safeguard is that the court should scrutinize their testimonies with great care and caution and if the same satisfy the conscience of the Court, the same could be placed reliance. No such infirmity could be detacted in the other evidence to exclude the same from consideration.

In this world of humans, amongst other lusts, viz. money lust, power lust and sexual lust, which are vigorously prevalent to drag the society into the world of vices, worst is the money lust which goes on increasing with no end to see. While attracted towards this material world, the public servants in order to compensate themselves and being over jealous of the comforts as enjoyed by the businessman or other big bureaucrats and politicians, indulge in collecting the money to maintain the standards at par with those rich people indulge into illegal activities as such stall the administrative system and project that no routine work could be done without greasing their palm. At the same time, the complainant in trap cases is always somewhat reluctant, rather than anxious, to complain to the Vigilance Department and to have a trap arranged. Even if the illegal gratification is demanded by a Government servant, it is only when he is fed up with the attitude of a particular officer and knows about his reputation. He take this extreme step while sacrificing his repute and knowing that he will not be able to get his work done in future easily and he have to often visit to the Courts which may result into wastage of his valuable time. He would have to company the officers and participate in the raiding party and play the main role. He would have also to sacrifice time, his job, work or vocation while doing so. He would have also to face the searching cross-examination and would be seen with hatered but despite all these things when he is fed up with the attitude of a corrupt officer, finds the things to be beyond his control, he adopts the course. Therefore, the Courts should not brush aside the evidence of such witnesses easily or lightly without condemning the complainant as biased, inimical, prejudiced, habitual criminal, blackmailer or exploiter. However, that does not mean that the testimony could be accepted outrightly yet the Court should consider, scrutinize and evaluate his testimony with care, caution and circumspection bearing in mind that in some cases an honest strict government official who wants to go by laws and rules may be falsely implicated by a vindictive or a purchased person acting at the instance of the enemies.

It is equally correct that mere recovery of tainted money and diverse circumstances under which it was paid, is not sufficient to convict the accused. It is also not enough that some currency notes were handed over to public servant by projecting it as payment of any amount due and he is made to accept the same on that pretext but the raiding party is differently projected. As such, the prosecution has a duty to prove that what was paid, amounted to gratification. Similar view was taken by the Apex Court in case C.M. Girish Babu v. CBI, Cochin, High Court of Kerala 2009 (2) RCR (Criminal) 134. Presumption u/s 20 is attached only when the tainted money is recovered from the accused, presumption u/s 20 is that the accused accepted the illegal gratification. However, the said presumption is rebuttable. The burden of proof placed upon the accused, against whom, the presumption made u/s 20 of the Act, is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. In cases where the accused is able to show that said amount was payable towards repayment of loan taken by the complainant; received money against which he was entitled to receive in due course of his duty. It was on account of the charges which he was bound to deposit and the latter was duty bound to receive. For example, in case of a bank manager, a cashier, bill clerk, accountant, if he receives the money from the complainant against the amount due as part payment, from a defaulter or a debtor against the loan then the question arises "whether such part payment could be treated as tainted money?" While taking another instance if an amount is paid in excess while putting phenolphthalein powder upon it to the cashier, accountant or a person sitting in the cash window and then raid is conducted and is projected that he received the excess amount as corruption money for depositing the same in the bank or the treasury, "could it be treated as tainted money?" It is also scene that bank officials as per directions of their higher authorities in anxiety to collect the debts from the farmers go to the villages or the villagers in turn pay them amount at their houses for adjustment quite against the loan, "could it be taken as tainted money?" Certainly, in the aforesaid circumstances, to my mind if the accused explains that the amount received by him was against the amount due, then the onus would be deemed to have discharged.

But in the present case, it was not the fee or the charges for entering the mutation in the revenue record. The accused was working in his office. He was duty bound to make an entry in the official record in the mutation register regarding the sale deed which was to be forwarded to the Assistant Collector for sanctioning of the same. The mutation is a highly valuable document for the agriculturist which in turn is incorporated in the copies of the jamabandies on the basis of which they could enter into transaction of sale purchase, mortgage or loan. From the evidence on the record, it would not be unsafe to conclude that the accused, with a motive to make an entry in the revenue record demanded Rs. 600/- from him which ultimately were got recovered from him by the trap party. It is duly proved that currency notes smeared with powder were recovered from the table over which the accused had thrown after taking the same out of his pocket. The eye witness Jatinder Tej Singh has not denied about the demand of the gratification. Recovery of the tainted money stands duly established. No plausible defence has been led by the accused to prove his innocence. No other point has been argued.

Resultantly, finding no merit in the appeal, the same is dismissed.