Kalu Ram vs State of Punjab

V.S. Aggarwal, J.

Kalu Ram appellant was employed as an Accountant in the office of Punjab State Electricity Board, Pathankot. Kamal Kishore complainant was also posted at Pathankot in Punjab State Electricity Board, Dhar Kalan as S.S.A. Dhar Kalan is Sub Division of Pathankot. The learned Special Judge, Gurdaspur held Kalu Ram appellant guilty of the offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 read with Section 7 of the said Act for having demanded and receiving Rs. 200/ from Kamal Kishore as illegal gratification by corrupt or illegal means by abusing his position of a public servant.

The relevant facts are that Kamal Kishore had earned his increment as a result of which certain arrears were due to him. The appellant was the Accountant and had to do the needful. Complainant Kamal Kishore approached the appellant for arrears of his salary as a result of the increment. The appellant told Kamal Kishore that he was presently going to Patiala and would come back on 9.5.1990. He promised to prepare the papers for arrears provided Rs. 200/ are paid as the bribe.

On 9.5.1990 Kamal Kishore came to the Vigilance Department and met the inspector at Pathankot. He told Inspector Vigilance that his arrears of increment were due and that the appellant was demanding Rs. 200/ for doing the needful. The complaining statement (Ex.PA) of Kamal Kishore was recorded. Kamal Kishore signed the same. He produced two currency notes of the denomination of Rs. 100/ each before the Vigilance Inspector. Their numbers were recorded in the memo that was prepared. The effect of phenolphthalein powder was demonstrated. It was applied to these currency notes. The currency notes were returned to Kamal Kishore with a direction that he should hand over the same to the appellant only on his demand. When the money is accepted, he was to give the signal by rubbing his hand over his head. Janak Raj was taken as a public witness. He was to accompany Kamal Kishore and watch the transaction. The raiding party had washed their hands and had left for the office of the appellant. The jeep was stopped at some distance from the office of the appellant. Kamal Kishore and Janak Raj went inside the office. Kamal Kishore went to the appellant. The appellant told him that he has prepared his pay roll and that he should pay Rs. 200/ as bribe. The appellant handed over the Pay Roll to Kamal Kishore. He took it to the Cashier and received Rs. 1062.40 as arrears of the increment. He came back to the seat of the appellant. The appellant enquired if the arrears have been received. Kamal Kishore gave the answer in the affirmative. Janak Raj was standing near the window and watching the transaction. The appellant demanded the bribe amount of Rs. 200/. Kamal Kishore handed over the tainted currency notes to the appellant. The appellant counted the currency notes and thereafter kept them in the right drawer of his table. Janak Raj who was standing near the window, gave the signal by putting his hand over his head.

Inspector Gurdial Singh who was heading the raiding party immediately came inside and disclosed his identity. The appellant was apprehended. The search of the appellant was conducted. The currency notes were recovered from the right drawer of the table of the appellant. He compared the numbers of the notes with the earlier recorded numbers in the memo. They were found to be the same. The currency notes were taken into possession vide a recovery memo. Thereafter, the appellant was asked to give his hand wash in a solution of Sodium Carbonate. The solution turned pink. It was converted into a clean bottle and sealed. The person of Kalu Ram appellant was searched and Rs. 200/ were recovered. Inspector Gurdial Singh prepared the rough site plan. He took into possession the attendance register and other documents. The arrears vouchers were also sealed. After obtaining the sanction to prosecute the appellant, challan was submitted in court.

On 8.3.1991 Special Judge, Gurdaspur framed charges against the appellant for the offences punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act and Section 7 of the said Act.

In support of its case the prosecution examined six witnesses which included complainant Kamal Kishore PW1, Janak Raj PW2 who had accompanied the complainant besides Gurdial Singh PW5 who was the police officer leading the police party. After the prosecution had closed its evidence, the incriminating evidence was put to the appellant in the form of different questions. He denied the evidence as a whole. His defence was forthcoming in answer to the last question put to him and reads :

"I am innocent. It was on 14.2.1990 that Kamal Kishore entered my office in a drunken condition and quarreled with me. I moved written application dated 14.9.1990 making complain against Kamal Kishore for his misbehaviour to Executive Engineer Sub Division, Pathankot. On 8.5.90 the arrear voucher was prepared in respect of his special increment and even the pay roll had been sent to the Sub Divisional Office on 8.5.90 for payment. I neither demanded nor accepted any illegal gratification from Kamal Kishore. In fact at the time of alleged raid I was at the residence of Executive Engineer who was ill. In my absence Kamal Kishore placed the amount in the drawer of my table. I was on tour from 7.5.90 to 9.5.90. I came back from my tour at about 1 P.M. on 9.5.1990. Kamal Kishore never met me on that day. The payment was to be made by the Sub Divisional office which is situated at a distance of about 150 yards from my office. I have been falsely implicated in this case because of my complaint against Kamal Kishore."

In defence the appellant examined five witnesses. Shri Jagmohan Seth DW1 was the Executive Engineer. On 9.5.1990 he was posted as the Executive Engineer at Pathankot. He stated that he had called the appellant at his house at about 4.00 P.M. The appellant left the residence at about 5.00 P.M. He denied that he was deposing falsely to help the appellant. Parbodh Raj Sharma DW2 is the Head Clerk working in the Sub Division, Punjab State Electricity Board, Pathankot. He testified that the appellant had made a complaint on 14.2.1990 against Kamal Kishore. Kamal Kishore was charge sheeted by the Superintendent Engineer, Punjab State Electricity Board, Gurdaspur. He was also chargesheeted again on 19.3.1990. During crossexamination he admitted that these enquiries had no connection with the appellant. Pawan Kumar DW3 stated that Kamal Kishore was posted in his Division in Punjab State Electricity Board, Batala from 22.1.1991 and that he was warned by the Executive Engineer, Batala City. Lastly Yash Pal, Revenue Accountant DW5 made a statement from the cash book register dated 9.5.1990. As per this witness, the bill for arrears of complainant Kamal Kishore for Rs. 1062.40 was received on 8.5.1990. The payment was made to three other persons also. The bill was received on 8.5.1990.

The learned Special Judge, Gurdaspur vide the impugned judgment held believing Kamal Kishore and Janak Raj that it is established that bribe was demanded from Kamal Kishore by the appellant and in presence of the witnesses, the bribe money was accepted. The appellant was held guilty of the offence punishable under Section 13(2) and Section 7 of the Prevention of Corruption Act. Thereupon the learned Special Judge passed the following order of sentence :

"U/S 13(2) of the Prevention of Corruption Act. R.I. for two years and to pay fine of Rs. 5000/ (Rs. Five thousand); In default of payment of fine, he shall undergo further R.I. for three months.

U/S 7 of the Prevention of Corruption Act. R.I. for one year and to pay fine of Rs. 2000/; In default of payment of fine, he shall undergo R.I. for one month."

The substantive sentences were directed to run concurrently.

With respect to the initial payment of bribe, necessarily Kamal Kishore PW1 would be the solitary witness. Exception may prove the rule but generally such demands would be made in isolation. To insist that somebody else should be present so as to state and corroborate that demand was made for payment of illegal gratification in presence of a third person, would not be correct. Corroboration if any could be forthcoming in the sequence of events from the subsequent facts. Kamal Kishore in his testimony made a statement that in the year 1990 he was posted as S.S.A., Punjab State Electricity Board, Dhar Kalan. It was in Suburban Division of Pathankot. His arrears as a result of the increment were due. The appellant was the Accountant in the Department. Kamal Kishore approached the appellant with respect to his arrears. The appellant replied that he was going to Patiala and would come back on 9.5.1990. He had promised to prepare the papers for the arrears as a result of the increment earned by Kamal Kishore but Rs. 200/ were demanded as bribe. Regarding the fact that Kamal Kishore was posted in Dhar Kalan as S.S.A., Punjab State Electricity Board and that the appellant was the Accountant, there is no controversy. The fact that appellant in this regard was in a position, and was able to help was not an issue and was not raked up. What was denied was that no such demand for payment of bribe was made. In this regard the statement of Kamal Kishore continues when he states that on 9.5.1990 he met Inspector Vigilance and made his complaining statement.

Learned counsel for the appellant assailed the said version of Kamal Kishore PW1 pertaining to the initial demand of bribe. He urged that complainant is of quarrelsome person. He picked up a quarrel with the appellant and made the complaint out of vengeance. As already referred to above Parbodh Raj DW2 has established that Kamal Kishore was chargedsheeted by the Superintendent Engineer on 17.1.1990. He was again chargesheeted by the Superintendent Engineer. Punjab State Electricity Board on 19.3.1990. Pawan Kumar DW3 further established that Kamal Kishore was transferred to Punj Garian in July, 1992 and was again transferred by giving a warning by the Executive Engineer, Batala City. So far as this conduct of the witness Kamal Kishore is concerned, the same is not of much importance. The reason being that even if Kamal Kishore is of bad character, this does not rule out that bribe could not be demanded from him. The Court may shudder to think of any eventuality when a person of not very good character or of quarrelsome nature is harassed, bribe demanded from him and still he is disbelieved because of the above said antecedents. Necessarily, therefore, reversion has to be made to the facts on the record qua the appellant.

The testimony of Parbodh Raj Sharma DW2 establishes that a few months before the present incident namely on 14.2.1990 the appellant had made a complaint against Kamal Kishore to the Executive Engineer, Pathankot. It is apparent that the appellant and Kamal Kishore did not pull on well and bad blood existed between the two. The chances of Kamal Kishore, therefore, implicating the appellant falsely cannot be ruled out.

Corelated with the same is the fact that as per statement of Kamal Kishore he had approached the appellant much earlier but the appellant told him that he would come back from Patiala on 9.5.1990 and prepare the papers of his arrears subject to the payment of bribe of Rs. 200/. The exact date when such a demand was made is not forthcoming. The record otherwise shows that what was being asserted that appellant was to do the needful on 9.5.1990 is not correct. Yash Pal, the Revenue Accountant (DW5) established from the record that bill was received pertaining to the payment to Kamal Kishore on 8.5.1990. Once the bill had been received with Yash Pal witness, then it is apparent that appellant has done all that what was within his power a day earlier before the bribe amount was to be paid. The fact so established runs counter to the version of Kamal Kishore and rules out the possibility of demand of bribe and the needful to be done on 9.5.1990.

As regards the actual conversation that took place between the appellant and Kamal Kishore, the prosecution evidence rests on the testimony of Kamal Kishore PW1 and Janak Raj PW2. Kamal Kishore states that he went and made the complaint with the Vigilance Inspector at Pathankot where preraid proceedings were drawn. At that time as per Kamal Kishore, Janak Raj and other officials were present. Janak Raj was asked to accompany Kamal Kishore, hear the conversation and give the signal after the appellant had accepted the bribe money. Accompanied by Janak Raj he went inside the office and approached the appellant. The appellant had told him that he had prepared the pay roll and Rs. 200/ as bribe should be paid. The appellant gave him the pay roll. Kamal Kishore took it to the Cashier and received the money. He again came back to the seat of the appellant. Janak Raj was standing near the window and witnessing the incident. Rs. 200/ were demanded. Kamal Kishore paid the amount to the appellant. Janak Raj appeared as PW2 and stated that he had gone to the office of the Vigilance Inspector, Pathankot with Kamal Kishore. Statement of Kamal Kishore was recorded in his presence. After demonstration of the effect of phenolphthalein powder, the money was handed over to the Kamal Kishore. He had accompanied said Kamal Kishore to the office of the appellant. Kamal Kishore enquired from the appellant whether his pay roll was prepared. The answer was given in the affirmative. Rs. 200/ were demanded by the appellant as illegal gratification. Kamal Kishore took the pay roll, went to the Cashier and collected the amount. Thereafter Kamal Kishore came and Rs. 200/ were given to the appellant which were accepted by him.

Law has always insisted that independent witnesses should be joined in all such raids. The practice of joining witnesses who are not independent and are at the beck and call of the complainant or the police, has to be deprecated. This not only makes the prosecution version shaky but the truth becomes difficult to be detected. The prosecution made no attempt to call an independent witness who could accompany Kamal Kishore, instead Janak Raj was taken as the witness. He had accompanied Kamal Kishore to the office of Inspector Vigilance, Pathankot. His close connection with Kamal Kishore is obvious. The testimony of Janak Raj has, therefore, to be taken as a pinch of salt rather than to be taken on its face value.

While both the witnesses as mentioned above recite about the conversation that took place and money demanded by the appellant, still it is doubtful if what is being stated is correct. The whole episode is alleged to have taken place in the office of the appellant in the afternoon. Jagmohan Seth is the Executive Engineer, Punjab State Electricity Board. On 9.5.1990 he was posted at Pathankot. The witness explained that the appellant was working as Divisional Accounts Officer with him. On 9.5.1990 he was on leave. He had called the appellant at his house at about 4.00 P.M. and he left the house after 5.00 P.M. There is no reason forthcoming as to why the testimony of this witness should be discarded. He is an independent witness, surely who will not go to depose falsely. Once the appellant was not present between 4.00 and 5.00 P.M. The question of his being implicated falsely cannot be ruled out.

It has to be remembered that recovery was effected from the drawer. It was not from the person of the appellant. This fact shows that possibility of the appellant being not present at the relevant time cannot be ruled out.

Learned Assistant Advocate General urged that hand wash of the appellant had been taken in a solution of sodium carbonate and it turned pink. This shows that the appellant had accepted the currency notes which were tainted and it proves the demand and recovery of the money. Kamal Kishore in this regard had made a statement that firstly the two currency notes were recovered, their numbers were compared and thereafter a solution of sodium carbonate was prepared and the hands of the appellant were washed in the said solution.

Janak Raj PW2 also made a similar statement that a solution was prepared and hand wash of the appellant was taken which turned pink. The testimony of the raiding officer Gurdial Singh PW5 is on the same lines. He stated that after the currency notes were recovered, he got the hands of the appellant washed in a solution prepared with sodium carbonate in a tumbler. The colour turned pink.

The sequence of events narrated indicates that the currency notes were recovered from the drawer of the appellant. Their numbers had been compared and found to be the same. There is nothing to indicate that thereafter the raiding officer had washed his hands, instead hand wash of the appellant was taken in a tumbler. It is not explained that the hands of the appellant had been held from the wrists. The currency notes had already been touched by the raiding officer. He did not care to ensure that somebody else takes the hand wash. He himself did not wash his hands. The chances of the solution turning pink, as a result of the hand wash, in the absence of any due care cannot be ruled out. Therefore, this particular argument of the learned Assistant Advocate General cannot prevail.

Furthermore as per statement of Kamal Kishore on 9.5.1990 he had approached the appellant and collected the roll for the arrears. He went to the office of the Accountant hereby and collected the money. The record shows otherwise. This is for the reason that bill had already been sent to Yash Pal PW5 a day earlier by the appellant. There was little occasion for collecting the bill on 9.5.1990 from the appellant. It is obvious from aforesaid that on all the counts the case of the prosecution fumbles and falters and is not free from doubt. The appellant is entitled to the benefit of doubt.

For these reasons, the appeal is accepted. The judgment and the order of sentence passed by the trial court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.