Kans Raj vs The State

Gopal Singh, J.—This is appeal by Kans Raj. It is directed against the judgment of Shri Raghbir Singh, Special Judge, Gurdaspur, dated July 10, 1968. By that judgment the Appellant has been convicted u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act 1947 and sentenced to rigorous imprisonment for six months.

Briefly stated, the facts of the prosecution case are as under: -

Gurnam Singh son of Natha Singh is resident of village Katanaur. His father was a Lambardar. Natha Singh died in l964. There were outstanding in his name arrears of land revenu? to the extent of about Rs. 4,000/-. The Appellant was working as Wasil-Baqi-Nawis in 1967 in the office of the Tehsildar, Gurdaspur. He was incharge of the work of issuance of warrants under Sections 69, 70 and 72 of the Punjab Land Revenue Act to effect recovery of arrears of land revenue. On coming to know that the recovery of arrears due from him was sought to be effected, Gurnam Singh contacted the Appellant in his office on October 28, 1967 and requested him not to effect recovery of the arrears of land revenue by reporting to coercive processes of attachment of his property. The Appellant told him in reply that he was prepared to do so provided he paid him bribe of Rs 100/-. The amount payable as bribe was negotiated and the figure was by mutual agreement reduced down to Rs 30. It was stated by Gurnam Singh that he would meet the appelant on October 30, 1967 and would bring the amount payable to him.

Gurnam Singh came to the precincts of the Tehsil office on October 30. 1967. He met Sardar Singh, at the tea stall near that office. Gurnam Singh told him that he had agreed to pay bribe of Rs. 30/- to the Appellant for the favour of postponing of the issue of warrants of attachment shown by the Appellant Sardar Singh suggested to him that he should contact Jaswant Singh, Deputy Superintendent of Police and apprise him of the facts pertaining to the demand of bribe by the Appellant. Consequently, he. met Jaswant Singh, Deputy Superintendent of Police in his office. The latter recorded the statement of Gurnam Singh it is marked Exhibit ''A''. Three currency notes, each of Rs 10/-were received from Gurnam Singh. They were initialled by Jaswant Singh. Memo pertaining to their recovery is Exhibit P. A. In that memo, there are mentioned the numbers and other particulars of these currency notes,

The details of the trap to be laid were chalked out. The facts pertaining to the demand of the bribe by the Appellant from Gurnam Singh were also brought to the notice of Narinder Singh, Tehsildar. He too was made to join the trap party. It was settled that Gurnam Singh would enter the room of the office of the Appellant and hand over the three currency notes Exhibits P. 1 to P. 3 to the Appellant, that a constable in plain clothes would watch the delivery of those currency notes to the Appellant and that after receiving the indication to be given by Gurnam Singh about the currency notes having passed to the Appellant, that constable would in turn give signal to the Deputy Superintendent of Police and the Tehsildar and that thereafter the Deputy Superintendent of Police and the Tehsildar would be in the office of the Appellant and effect recovery of the currency notes from him.

In execution of the plan for entrapping the Appellant as devised above, Gurnam Singh is said to have given the currency notes Exhibits P. 1 to P. 3 to the Appellant. On receipt of signal from the Constable, the Deputy Superintendent of Police and the Tehsildar entred the office room of the Appellant. On their arrival in the room, the Appellant stood up. On enquiry by the Deputy Superintendent of Police from the Appellant as to where the currency notes were, the Appellant produced the three currency notes Exhibits P. 1 to P. 3 from the file with which, it is stated, he was fumbling at the time the Deputy Superintendent of Police and the Tehsildar arrived in the room.

The three currency notes Exhibits P. 1 to P. 3 were recovered by Jaswant Singh, Deputy Superintendent of Police. Memo pertaining to their recovery is Exhibit P. B. It is scribed by Jaswant Singh, Deputy Superintendent of Police and is attested by Gurnam Singh, Sardar Singh, and Narinder Singh. On the basis of that recovery memo, first information report Exhibit P. E. was drawn up and registered at Police Station Sadar, Gurdaspur, at 1.50 p. m. on October 30, 1967.

The Appellant was proceeded against for trial for offence u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The case of the prosecution about the recovery of the three currency notes said to have been offered by way of bribe to the Appellant was supported by the evidence of Gurnam Singh P.W. 1, Sardar Singh P.W. 2, Narinder Singh Tehsildar P. W. 3 and Jaswant Singh Deputy Superintendent of Police P. W. 4.

In his statement u/s 342, Criminal Procedure Code, the Appellant denied that he had accepted any bribe from Gurnan Singh P. W. He pleaded that he had gone out of his office room to obtain a warrant from the office of the Naib-Tehsldar, that when he returned to his room, he found Gurnam Singh P.W. present there, that while he was tagging that warrant with the file of warrants, the Deputy Superintendent of Police entered the room and asked him if he had accepted any money as bribe from Gurnam Singh that the Appellant told him that he had not got done so, that his person was searched by the Deputy Superintendent of Police but nothing was recovered from him, that Gurnam Singh P.W. whispered something to the Deputy Superintendent of Police, that thereafter the Deputy Superintendent of Police himself picked up the file, Exhibit P. 4. which was lying on the ground, that the Deputy Superintendent of Police directed him to open the file and that on opening the file, some currency notes were found lying in it. He further stated that these currency notes were taken in possession by the Deputy Superintendent of Police, that it was on some written documents that his signatures were got appended, when he was flabber ghasted and that he signed that document without going through its contents. In support of his defence, the Appellant produced Amrit Lal Wasil Baqi Nawis in the Tehsil Office, D.W.1, working in the office room in which the bribe is said to have been passed to the Appellant to show that the Appellant had gone out of the room and that Gurnam Singh P.W. came to the room in his absence.

The trial Court did not believe the testimony of Sardar Singh P.W. Relying on the evidence of Gurnam Singh, Narinder Singh and Jaswant Singh P. Ws, the Appellant was found guilty and was convicted and sentenced as detailed above.

Shri Har Parshad appearing on behalf of the Appellant has contended that the prosecution witnesses produced to prove the recovery of bribe given to the Appellant are partisan and unreliable witnesses and interested in the success of the prosecution case, that the probability of the currency notes Exhibits P. 1 to P. 3 having been left by Gurnam. Singh P.W. in the pages of the file without their having been delivered to the Appellant cannot be excluded and that the story of the prosecution is highly improbable.

Gurnam Singh, Sardar Singh. Narinder Singh and Jaswant Singh P. Ws. were produced in support of the case of the prosecution. Sardar Singh P. W. has been disbelieved by the trial Court on the grounds that although be comes from village Peerowali. which is different from village Kalanaur, to which Gurnam Singh P. W. belongs, yet the two met together at the tea stall in the precincts of the office of the Tehsildar, that their meeting was very unlikely and that Gurnam Singh P. W. posed ignorance about the existence of relationship between him and Sardar Singh although it was admitted by Sardar Singh P. W. that Gurnam Singh P. W. was the nephew of the son of sister of his mother. When Gurnam Singh was asked as to how the had acquaintance with Sardar Singh. P. W., the former replied that he visited the village of Sardar Singh P.W. and purchased a buffalow for Rs. 450 or Rs. 500. The trial Court also noted a couple of material discrepancies in the statement of Sardar Singh P. W. suggestive of the fact that he could not have been either present at the time recovery was effected or did not correctly and truly state the facts pertaining thereto and consequently was an unreliable witness. The trial Court has quite rightly excluded from consideration the testimony of that witness. I also do not rely upon his testimony.

Gurnam. Singh P. W. is the complainant. It has been proved by Yash Pal, Patwari of Circle Kalanaur P. W. 5 that arrears to the tune of Rs. 7766 33 were owing by Gurnam Singh on December 18 1967. As stated by Amrit Lal D. W. 1 it was his duty to prepare accounts pertaining to the arrears of land revenue owing by the land owners and the Lambardars and that it was after supplying the names of the defaulters by whom arrears of land revenue were payable that the Appellant used to take action under Sections 68 and 69 of the Land Revenue Act for issue of warrants of attachment of the property of the defaulters to effect recovery of those arrears. The evidence of Yash Pal Patwari P. W. shows that Gurnam Singh P. W. was liable to proceeded against by coercive processes of warrants of attachment of his property to effect the recovery of arrears of land revenue due from him. In order to avoid bad name being brought to him and his reputation being spoiled, he must have been anxious to avoid the issue of warrants for attachment of his property With that end in view, he contacted the Appellant on October 28, 197. He requested him not to issue the warrrants. The Appellant agreed to do so provided his palm was greased. After some negotiation the sum of Rs. 30 was settled to be paid to the Appellant. They fixed October 30, 1967 as the date for payment of bribe in the office of the Appellant.

After making statement Exhibit ''A'' and after three currency notes each of Rs. 10 had been received from Gurnam Singh and memo Exhibit P. A. pertaning to the receipt of currency notes Exhibits P. 1 to P. 3 had been drawn up by Jaswant Singh Deputy Superintendent of Police P.W. and the notes were initialled, the party put the plan of entrapping the Appellant through There could be no doubt about the presence of Gurnam Singh P. W. as deposed to by Gurnam Singh P.W. himself and corroborated by Narinder Singh and Jaswant Singh P. Ws. His presence is not denied by the Appellant himself. He states that when he returned after having gone out of his room to obtain signature of Naib Tehsildar on a warrant, he found Gurnam Singh P. W. present in the room. Not only, the statement Exhibit ''A'' the receipt of currency notes Exhibit P. 1 to P. 3, Exhibit P. A. are signed by Gurnam Singh P. W. but Exhibit P. B., which was drawn up after the recovery of currency notes Exhibits P. 1 to P. 3 was effected from the file in the room of the Appellant is also attested by him.

In course of cross examination, Gurnam Singh P.W. at first admitted that he had made a complaint against the Appellant. As the cross examination continued, he stated that he did not know that Raghbir Singh, one of the defaulters in payment of arrears of land revenue, made any application to the Tehsildar alleging that he had paid the entire amount of the arrears to him and that nothing was due from him that report on that application made by Raghbir Singh had been obtained from the Appellant and forwarded to the Sub-Divisional Officer for prosecution of Gurnam Singh P.W. for his having withheld from the Tehsildar the fact of recovery of the arrears of land revenue owing by Raghbir Singh He admitted in course of cross-examination that he made complaints to the Public Grievance Officer against the officials of the Tehsil Office because his crops had been attached for effecting recovery of Rs. 7,500 owing by him. Two of the complaints made by him are dated March 27, 1967 and June 29, 1967. Similarly, there could be no doubt for the presence either of Jaswant Singh, Deputy Superintendent of Police or of Narinder Singh Tehsildar P. Ws. The recovery of the currency notes was effected after the same were found lying in file, Exhibit P. 4.

15 The difference between the stand taken up by the Appellant in his statement u/s 342, Code of Criminal Procedure and the case of the prosecution pertaining to the recovery of currency notes Exhibits P. 1 to P. 3 is very small. According to the case of the prosecution, the currency notes were found lying in pages of the file Exhibit P. 4 and were thereafter recovered while according to the plea taken up by the Appellant in his statement u/s 342, Criminal Procedure Code, these currency notes were recovered from the file when the Appellant picked up the file on being asked by Jaswant Singh, Deputy Superintendent of Police P.W. to open the file, in which there had been placed those currency notes. Although, Gurnam Singh P.W. states that he gave currency notes to the Appellant but nowhere does Gurnam Singh P. W. state that these currency notes had been placed by the Appellant in the file. The case of the prosecution to prove the fact that the currency notes Exhibits P. 1 to P. 3 were in fact offered by Gurnam Singh P.W. as bribe and accepted as such by the Appellant and actually received by him hinges upon the view to be taken about the testimony of Gurnam Singh P.W. and the circumstances explained by the Appellant in his statement u/s 342, Criminal Procedure Code, under which Gurnam Singh P. W. parted company with these currency notes.

As I have alluded to above, there was no love lost between Gurnam Singh P. W. and the Appellant because of the complaint made by Gurnam Singh against the Appellant and also because of the persistence from time to time on the part of the Appellant to issue coercive processes of warrants of attachment of his property. It is very difficult to place implicit reliance upon the testimony of Gurnam Singh P. W. The inference of existence of ill will and grudge on the part of Gurnam Singh P. W. against the Appellant is irresistable. Thus, Gurnam Singh P. W. is a witness highly interested against the Appellant. The evidence of Gurnam Singh P. W. is not unequivocal and convincing to show that currency notes Exhibits P. 1 to P. 3 were actually delivered by him to the Appellant and that the currency notes passed in the hands of the latter Not only Gurnam Singh P. W. is an. undependable witness because of his hostility with the Appellant but also this witness otherwise has scanty regard for truth. When he was asked as to whether Sardar Singh P. W. 2 was in any way related to him, he had the cheek to deny the existence of any relationship and posed mere acquaintance with Sardar Singh P. W. on the ground of his having purchased a buffalow for Rs. 450 or Rs. 500 upon his visit to village Peerowali, to which village Sardar Singh P. W. belongs. On the other hand. Sardar Singh P. W. admitted that Gurnam Singh was nephew of the son of sister of his mother. In order to show want of previous contacts arid intimacy with or interestedness in Sardar Singh P. W., he stated that his meeting with Sardar Singh P. W. at the tea-stall in the precincts of the office of the Tehsildar was just casual Gurnam Singh P. W. is thus not only an interested witness but also by his antecedents acts not seem to be a respectable person and has lost, by denying his relationship with Sardar Singh P. W., the respect of a truthful person. It is in the background of unreliability of this witness and twisted and false facts deposed to by him that value of his evidence regarding the delivery of currency notes to the Appellant has to be judged. The fact of the currency notes having been passed by Gurnam P. W. into the hands of the Appellant is not only not distinctly stated by him but is also not corroborated by any other witness. Amrit Lal D. W., who was admittedly present in the room of the office of the Appellant and about whose presence even Gurnam Singh P. W. does not deny, dees not at all state that any currency notes were in his presence handed over by Gurnam Singh to the Appellant and that the same were received by the latter. Amrit Lal D. W. was sitting close to the Appellant. The parties to the giving of the bribe and the taking of the bribe are Gurnam Singh P. W. and the Appellant. The Appellant has admitted the fact of the currency notes having been recovered from the file but he has given a reasonable explanation and the circumstances under which the currency notes came to be placed in the pages of the file. He states that these currency notes seem to have been left by Gurnam Singh P. W. in his absence when he went out of the room to the office of the Naib-Tehsildar to obtain a warrant and that he did not know that the currency notes had been placed by Gurnam Singh P. W. in the pages of the file and that it was only after the arrival of Jaswant Singh Deputy Superintendent of Police P. W. accompanied by Narinder Singh, Tehsildar P. W. that he found on picking up file Exhibit P. 4 as directed by Jaswant Singh that the currency notes were iying in that file. The stand of the Appellant that the currency notes seem to have been left by Gurnam Singh P. W. in his absence finds support from the evidence of Amrit Lal D. W. This witness states that it was in the absence of the Appellant, when the Appellant was away to the office of the Naib-Tehsildar, that Gurnam Singh P. W. came to the room and sit close to the place where the Appellant sits It is just possible that the currency notes might have been shoved by Gurnam Singh P.W. in the file at that time. If the case of the prosecution is accepted that the currency notes were recovered from the file and not from the person of the Appellant, the probability cannot be excluded that the currency notes might have been left by Gurnam Singh P. W. in the pages of file Exhibit P. 4, which was lying in front of the Appellant and might not have been personally received by the Appellant. The case of the prosecution as supported by the evidence of Gurnam Singh is not free from doubt and difficulty about the currency notes having not been left in the file by Gurnam Singh P. W. and the same having been accepted and received by the Appellant as a bribe.

The offence of bribe could be held to have been committed only if the receiver of the bribe intentionally accepts the amount offered as such. Even if the giver of the bribe offers the bribe or leaves the amount of bribe to be given in front of the alleged receiver but the receiver does not consciously and deliberately receive the amount and has no intention to receive it, the offence of acceptance of bribe could not be held to have been committed. There must be mutuality between the intention of the giver of the bribe and that of the acceptor of the bribe. The giver must intend to give and the receiver must intend to take the amount as bribe. Unless the two coalesce, the resultant act could not constitute the offence of taking of bribe. I find it is a fit case for benefit of doubt as to the amount having been accepted by the Appellant as bribe being given to the Appellant.

In the result, I allow the appeal and set aside the conviction and sentence of the Appellant.