Hamid Mohammad @ Deva (deceased) through L.Rs. and Another vs State of Punjab

A.N. Jindal, J.—Hamid Mohammad and Satar Mohammad were prosecuted for the offences under Sections 7 & 13(2) of the Prevention of

Corruption Act, 1988 (herein referred as ''the Act'') and 420 IPC consequently, the trial Court while acquitting them of the charges u/s 7 & 13(2)

of the Act, convicted and sentenced them to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 12,500/- each u/s

420 IPC. It was further directed that on realization, a sum of Rs. 20,000/- would go to the complainant.

Factual matrix of the case is that Hamid Mohammad was working as Assistant Line Man in P.S.E.B. Chaurwala Grid District Fatehgarh Sahib

and accused Satar Mohammad is his son. Under a settlement, accused persons had received a sum of Rs. 40,000/- on 25.10.1996 and Rs.

1,10,000/- on 07.12.1996 from complainant Hardayal Singh (herein referred as ''the complainant'') with the promise that they will get employment

for his sons. However, the accused neither provided employment nor returned the money, therefore, on the basis of the aforesaid secret

information dated 13.08.1998, a case was registered against them u/s 420 IPC as well as 13(1)(d) read with Section 13(2) of the Act and

investigated. The accused were arrested. During investigation, the accused disclosed before DSP Harjap Singh that they had concealed two fake

and forged orders Ex. P1 and P2 and he could get the same recovered, therefore, in pursuance of the said statement, he got recovered the said

fake orders, which were taken into possession vide memo Ex. P7. On completion of investigation, challan was presented against them.

They were charged for the aforesaid offences to which they pleaded not guilty and opted to contest.

In order to substantiate the charges, the prosecution examined eleven witnesses in all.

When examined u/s 313 Code of Criminal Procedure, they denied all the incriminating circumstances appearing against them and pleaded their

false implication in the case. Hamid Mohammad took the stand that the complainant party might have been cheated by Paramjit Singh Jandu in the

name of Directorate Project Education, Sports and Culture, Ministry of Human Sources, Punjab, Chandigarh. Satar Mohammad also took the

identical stand. They examined Balwinder Singh (DW1) and tendered into evidence the copy of the FIR No. 97 dated 18.12.1997 under Sections

420, 465 and 120B IPC, registered at Police Station Bassi Pathanan against Paramjit Singh and others.

The trial Court while acquitting the accused u/s 7 & 13(2) of the Act, convicted and sentenced them u/s 420 IPC.

During the pendency of the appeal, Hamid Mohammad died. However, on the request made by counsel for the Appellant, his legal

representatives Smt. Mukhtiaro, Rani, Palo, Kursaid, Akwinder and Satar Mohammad were brought on record.

Arguments heard. Record perused.

Mr. Akshay Bhan, counsel for the Appellants, has raised various contentions including that the element of cheating, which runs through Section

420 IPC, is missing in the case. The complainant has also failed to prove if any money, as allegedly paid by him, has been actually delivered to

Hamid Mohammad and Satar Mohammad or to either of them. There is serious delay in lodging the complaint which also creates a doubt on the

prosecution case.

Having given my thoughtful consideration to the aforesaid contentions, the specific allegations, as made by the complainant, are that he had

parted with the money of Rs. 1,50,000/- in two installments. Rs. 40,000/- were paid on 25.10.1996 and Rs. 1,10,000/- were paid on

07.12.1996 to the accused in the presence of Sukhdev Singh (PW2) but the FIR in the case was lodged on 13.08.1998 i.e. after about 8/10

months respectively from the date the offence was committed. No plausible explanation has been put forth by the prosecution in order to show as

to why the complainant was reluctant to lodge the FIR. Had the accused actually cheated the complainant for such a huge amount, then the

complainant must have come forward to initiate action against him without wasting any time but that was not so done. Thus, the delay in this case

has certainly resulted into embellishment and exaggeration, resulting into concoction of the prosecution version.

As regards the source of money through which the complainant had allegedly paid the amount to the accused, the case of the prosecution

hinges on the testimonies of complainant Hardyal Singh (PW1) and Harjit Singh (PW4). Harjit Singh (PW4) is the commission agent at Sirhind

Mandi and Chandu Ram and Gulshan Kumar, commissions agents, are working in the grain market at Rajpura from whom the complainant

allegedly had received the amount. Complainant has stated that he had borrowed a sum of Rs. 25,000/- each on different dates i.e. on 18.10.1996

and 25.10.1996 to pay the same to the accused. Had the complainant actually taken this money from Chandu Lal and Gulshan Kumar,

commission agents at Rajpura, then he must have examined these two witnesses or any of them in order to establish the transaction. The

complainant is an agriculturist and admittedly he had no money at hand. In the absence of any evidence with regard to the borrowing of money, as

claimed by him, it would be difficult to believe that the complainant had brought this money from the aforesaid two commission agents. Had the

complainant been in possession of any receipt regarding the aforesaid money then that could be believed but in the absence of any

acknowledgement or document like a receipt regarding the payment, it would be difficult to believe such heavy payment of Rs. 40,000/- to the

accused.

The case also suffers from serious contradictions with regard to the payment of this much amount to the accused. Complainant Hardayal Singh

(PW1) has stated that he had paid Rs. 40,000/- from the aforesaid amount of Rs. 50,000/- to the accused on 25.10.1996 and had retained Rs.

10,000/- at his house for his expenditure. He has further stated that he had brought Rs. 25.000/- from the Commission Agent at Rajpura on

18.10.1996 but in his cross-examination he has contradicted the same stating that he had brought Rs. 25,000/- on 24.10.1996. He has stated that

the difference of period with regard to payment was about 1= months whereas Sukhdev Singh (PW2) has stated that the difference of two

payments was between 3-1/2 months which goes a long way to establish that both the witnesses are contradictory as to when first or second

payment was made to the accused.

Now coming to the source of the second payment, complainant has stated that the said amount of Rs. 1,10,000/- was taken on loan from

Harjeet Singh (PW4) on 06.12.1996 and there was no reason for him to take this amount as an amount of Rs. 50,000/- was returned by him

within two months creates doubt over the bahi entry made by Harjit Singh (PW4). His previous examination dated 20.07.2000 and cross-

examination dated 19.09.2000 do not synchronize with each other. Even both Hardayal Singh (PW1) and Sukhdev Singh (PW2) are

contradictory in their statements regarding the payment of money. Hardayal Singh (PW1) appears to have made material improvements. He

recorded in his statement before the police that he had handed over the money to Hamid Mohammad, who in turn gave the same to Satar

Mohammad but this fact was not got recorded by him in his statement Ex. D1. Hardayal Singh (PW1) has stated that he had to pay the money for

the employment of his son Har Bhagat Singh but during the cross-examination he has stated that he had paid the money for the service of his four

sons. Similarly, as regards Sukhdev Singh (PW2), he has not given any date and time of payment of the money to the accused. He recorded in his

statement that Hardayal Singh (PW1) had paid Rs. 40,000/- to accused Hamid Mohammad, who passed on the same to accused Satar

Mohammad but he did not record this fact in his statement Ex. D2. Similar reply was made by him qua the subsequent instalment of Rs. 1,10,000/-

.

Again the prosecution case suffers from material irregularities. The accused Hamid Mohammad was only a chowkidar in the P.S.E.B and his

son was not holding any office and he did not show any influence which he may be holding over some officers, then what inspired the complainant

to part with such a huge amount. No evidence has been led if he had provided employment to any other person of his village. The complainant did

not know even Hamid Mohammad or his son prior to the occurrence.

Two letters Ex. P1 and Ex.P2 are alleged to have been recovered from the possession of accused which are stated to be the orders of

employment. It has not been proved on record if these letters were forged by the accused. Having gone through these letters Ex. P1 and Ex. P2,

these are dated 09.12.1996 & 11.12.1996 respectively and none of them is in the name of Harbhagat Singh son of Hardayal Singh. The case set

up by the prosecution basically is that the money was received by the accused for providing employment to Harbhagat Singh. Had any of these

letters been in the name of Harbhagat Singh then that could lend support to the prosecution case. Anyway, it is not established on the record that

the signatures of these letters Ex. P1 and Ex. P2 were forged by the accused.

While examining the case from another angle, had the accused forged these documents then these must have been delivered by them to the

complainant on receipt of payment but that was not done which also creates a doubt over the prosecution case. It has also come in evidence that

the accused had not disclosed as to in which department and what sort of post the accused persons were to provide to the sons of complainant. In

these circumstances, it would be improbable rather impossible to part with such a huge amount without knowing as to what sort of employment his

son is being provided.

Having scrutinized the impugned judgment, the same is not based on correct appreciation of evidence. The aforesaid material evidence and

improbabilities have not been discussed, therefore, it results into miscarriage of justice, warranting interference by this Court.

Resultantly, I accept the present appeal, set aside the impugned judgment and acquit both the accused of the charges framed against them.

Since Hamid Mohammad has died, therefore, bail bond and surety bond furnished by Satar Mohammad stand discharged. He is directed to be set

at liberty forthwith. Fine, if any deposited, be refunded. However, this judgment would not affect the result of any departmental inquiry if

conducted against Hamid Mohammad on the similar grounds.