Balbir Chand vs State of Punjab

Harmohinder Kaur Sandhu, J.

Balbir Chand who was Meter Reader in Punjab State Electricity Board at TarnTaran was tried for offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and under Section 161 of the Indian Penal Code by Sh. A.B. Singh Wasu, Special Judge, Amritsar. As per judgment dated 30th April, 1986, he was held guilty and was sentenced to undergo rigourous imprisonment for two years and to pay fine of Rs. 500/ for the offence under Section 5(1)(d) of the Prevention of Corruption Act and in default of payment of fine to further undergo rigorous imprisonment for six months and to undergo rigourous imprisonment for six months, for the offence under Section 161 of the Indian Penal Code. Aggrieved by this judgment recording his conviction, Balbir Chand filed the present appeal.

The facts of the case in brief are that there was an electric meter N.K. 93 in the premises of Jaswinder Singh, complainant which was checked by the appellant. The meter was sticky and the complaint was found stealing energy. He was told that if he pleased the appellant, he could save expenses of changing the meter. The electric connection was in the name of the mother of Jaswinder Singh. On 391983, the appellant again told the complainant at his shop that he should pay Rs. 300otherwise he will make a report and the complainant will have to incur expenses amounting to Rs. 1,000/. Jaswinder Singh thereupon contacted Vigilance Bureau, Amritsar where he made his statement Ex. P.B. on the basis of which a case was registered against the appellant. The complainant handed over three currency notes of the denomination of Rs. 100/ each to the Vigilance Inspector who noted the numbers of the currency notes and treated the same with phenolphthalein powder. The currency notes were returned to the complainant vide memo Ex. PC A trap was then laid. Ujjagar Singh PW accompanied the raiding party and agreed to act as a shadow witness. Shri O.P. Goyal, S.D.O. was joined from TarnTaran. The appellant came to the shop of Jaswinder Singh where he demanded the bribe money. The complainant handed over currency notes P1 to P3 to the appellant. When a signal was made by Ujjagar Singh the raiding party entered the shop of the complainant. The appellant threw the currency notes underneath the table. He was apprehended and his hands were washed in a solution of sodium carbonate which became pinkish. The currency notes were recovered from underneath the table and the numbers of the currency notes were tallied with the numbers mentioned in memo. After completion of the investigation the appellant was arrested and eventually prosecuted.

The appellant in his statement under Section 313 Cr. PC denied the allegations made against him and contended that when his hands were wished, there was no change of colour and the tainted currency notes were recovered from the ground where the same had been thrown by the complainant himself who concocted false case against him in connivance with Ujjagar Singh who was his partner and Gurmukh Singh who was a relative of Ujjagar Singh and was an employee of the Vigilance Department. He was involved in this case as he had already reported against Jaswinder Singh PW. He further stated that he was coming from the side of Khalsapur road as usual, after taking reading of meters and was passing through the market when Jaswinder Singh called him. In the meantime, an official of the Vigilance Department came there. He was called in the presence of Sardari Lal Kapur, President of Arhtia Association. He never accepted any illegal gratification and Sardari Lal Kapur knew about this fact and he sent telegram Ex. D.C. In his defence he also produced photostat copies of the enteries Ex. DA & DB made in the register, in order to prove that he had already reported that the two meters installed in the premises of the complainant were not giving true reading and one of the meters was dead.

I have heard Sh. J. S. Mann, learned counsel for the appellant and Sh. B.S. Gill, learned Assistant Advocate General Punjab, counsel for the respondent and gone through the record.

The learned counsel for the appellant contended that there was hardly any evidence on record to show that the appellant ever demanded illegal gratification from the complainant. There was only the statement of Jaswinder Singh complainant regarding the demand which was not reliable and convincing. According to Jaswinder Singh, the complainant demanded the bribe money from him three times, firstly, three months before the trap was laid, then the second demand as made one month thereafter, and then again the appellant visited his shop and asked him to make payment to him on 691983. No report regarding earlier demands was made to the Vigilance Bureau nor did the complainant talk about these demands to anyone.

I find that this contention of the learned counsel is quite tenable because Jaswinder Singh had not made a consistent statement regarding the demand of illegal gratification. In his statement Ex. PB, he stated that the appellant came to his house for meter checking and told him that in case the meter had to be changed, he will have to spend sufficient amount. So, it will be better if he gave him some money and then he stated that after that the appellant came to his shop on 391983 and demanded a sum of Rs. 300/ in case no report was to be made regarding the meter being defective. When he appeared in Court, he made a statement that once his mother telephoned him that the appellant had come along with meter and asked if they wanted to change the meter, at which he went to his house and found that the appellant and one peon were present there and then a demand was made. This evidence shows that so far as the question of demanding illegal gratification is concerned, the prosecution was in a position to produce some evidence to corroborate the testimony of the complainant. Mother of the complainant could be produced to show that in fact the appellant had come to change the meter but he did not change it and demanded bribe. Complainant is running a Commission Agent''s shop in the market and it was his contention that on 391983, the appellant visited his shop and again demanded the amount. It is not likely that no person was present at his shop when the appellant went there to make a demand but besides making his own statement, Jaswinder Singh did not name any other person in whose presence the demand was made. He made a material improvement in his statement in Court when he deposed that his mother called him on the arrival of the appellant. The peon accompanying the appellant was also not examined by the prosecution. Moreover, statement of Jaswinder Singh shows that when the appellant told him that his meter had to be changed, he was not bothered and he asked the appellant to do whatever he wanted to do. In that case, it was not likely that the appellant still persisted in his demand for bribe. The entries in the register Ex. D A and D B show that much before the matter was reported to the Vigilance Bureau, the appellant had made report regarding the two meters installed in the premises of the complainant. Although Jaswinder Singh was asserting that the appellant demanded bribe in connection with only one meter N. K. 93 yet he admitted that another meter N. K. 92 was also installed in his premises. The appellant had made a report regarding both the meters. The register containing reports remained in possession of Mohinder Singh PW2 and he produced it before the Vigilance Inspector on 661983. The Inspector put his initials against these entries. There was thus no chance of tampering with these entries. Mohinder Singh also stated that the meter of A/c No. N.K. 93 was sticky and regarding the other meter, the appellant reported meter''s terminal seal was missing and it had a cut on mainside. In these circumstances, when the appellant had already made report against the complainant, there was hardly any occasion for him to demand bribe. In the case of Tarlok Singh v. The State of Punjab, 1983(1) Recent Criminal Reports 382, it was observed :

"Demand of bribe should be corroborated by independent witnesses, Testimony of complainant alone is not sufficient."

As regards the testimony of trap witness, it was urged that Ujjagar Singh PW4 was an interested witness and he was joined in the raiding party on that account. He had no purpose to visit Amritsar. He was just a chance witness and he came forward to support the case of the prosecution on account of his having a joint business with the complainant. I find that this contention of the learned counsel is quite valid. Jaswinder Singh, PW 3 admitted that Ujjagar Singh was his partner and they had taken a joint contract for the labour of Punjab ware House at Patti. The other witness Karnail Singh who too was joined in the raiding party but was not examined was also a partner of Jaswinder Singh. The Investigating Officer did not make any serious endeavour to secure independent and respectable witnesses. The testimony of interested witnesses did not inspire confidence. Both Jaswinder Singh and Ujjagar Singh were contradicted by the other witnesses, so far as the recovery of the currency notes from the possession of the appellant was concerned. They went to the extent of saying that when a signal was made to the raiding party the Inspector, and other persons entered the Shop. The Inspector disclosed his identity to the appellant and constables caught hold of the appellant by his arms and it was only then that the appellant threw the currency notes underneath the table. But PW5 O.P. Goyal, Kulwant Singh and Ram Parkash did not depose likewise. They admitted that they had not seen the appellant throwing the currency notes on the ground, The crossexamination. of Jaswinder Singh and Ujjagar Singh PWs showed that they were eventually disposed against the appellant as he had already made a report against Jaswinder Singh complainant and there had also been altercation between them. The tainted currency notes were never recovered from the person of the appellant. The version given by the prosecution even otherwise is not natural. Person accepting bribe is likely to put money in his pocket and will not keep it holding in his hand. When the currency notes were recovered from under the table, the recovery is not confidenceinspiring and the possibility of planting the tainted money cannot be ruled out. The recovery becomes highly doubtful more so when the scientific evidence was also to the effect that the currency notes were not touched by the appellant. The solution with which the hands of the appellant were washed, as reported by the Expert in his report Ex P1 was not found to contain phenolphthalein powder. Report Ex. P1 thus causes a great impediment in the case of the prosecution.

It was next urged on behalf of the appellant that the sanction of the prosecution of the appellant obtained in this case was also not valid. The sanction was granted by S.S. Johal, Superintending Engineer vide his sanction order Ex. PJ. First it was not proved on record as to who had appointed !he appellant and then Shri S.S. Johal had not applied his mind before giving sanction. Sh. Davinder Kumar Sharma, PW.8 admitted that sanction draft was received alongwith the papers from Vigilance Bureau on the basis of which sanction order Ex. PJ was prepared. The sanction draft was initialed by him as well as by the Superintending Engineer but Sh. S.S. Johal when he appeared as PW9 denied that any sanction draft was received along with the papers or he initialed the same. According to him, he dictated sanction order Ex. PJ on 5111983 but the order was dated 7th November, 1983 and he was unable to say as to who had written the date and filled in blanks in the last para of the order. I find that the sanction granted in this case is also not valid, as the evidence regarding the sanction was not consistent and the two witnesses examined to prove the same made inconsistent statements from which the obvious inference is that the prepared sanction draft was put before the authority giving sanction and it was simply signed by him. The blank spaces were filled by some one else.

Taking all the circumstances into consideration, I am of the view that in the absence of any independent corroboration of the demand of bribe by the appellant, inconsistent statements of the witnesses regarding the recovery of the amount & absence of phenolphthalein powder in hand wash of the appellant, the prosecution case is not free from doubt. In this view of the matter, the appellant is entitled to benefit of doubt. Hence, this appeal in accepted, sentence and conviction of the appellant are set aside and the appellant is acquitted of the charge.

JUDGMENT according.