Kuldip Singh vs State of Punjab

M.M. Punchhi, J.

Kuldip Singh appellant was convicted under section 5(1)(e) read with section 5(2) of the. Prevention of Corruption Act by, the Special Judge. Amritsar and was sentenced to two years'' rigorous imprisonment and to pay a fine of Rs. 2000/, in default of payment of which to further undergo rigorous imprisonment for six months.

The allegation against the appellant was that on 11th May, 1978, while being posted as Road Inspector in the P W. D., B&R he was found in possession of a house worth Rs. 15,000/ in the name of his wife Balbir Kaur. It was constructed over plot No. 13, Vijay Nagar, Batala Road, Amritsar and he allegedly acquired the same disproportionate to his known sources of income.

The matter sprung up when Vigilance Inspector Harbhajan Singh on receipt of secret information lodged first information report on 11th May, 1978, at Police Station, Sadar Amritsar on the allegation aforereferred to. At that time, the house was statedly under. construction. The specific allegation was that the appellant was taking construction material belonging to the Government for his own house. The part of the allegation the prosecution in a separate trial could not prove but the appellant was doubted on his property statement which the Vigilance Inspector with the permission of Superintendent of Police (Vigilance) obtained. The property statement filed in by the appellant mentioned that a sum of Rs. 10,000/ had been spent by him in the year 197475 for the construction of the house, of his wife, and the money had been raised by her by arranging Rs. 9000/ by selling 1125 grams of gold and the. remaining amount had been received by her by way of Shagan (customary presents). However, the appellant could not furnish any documentary proof with regard to the sale of gold through a registered dealer. The house, however, was got assessed from Jawahar Lal Jain, S.D.O. Construction Division who assessed the value of the same at Rs. 15,000/. This gave rise to the launching of prosecution against the appellant.

At the trial, the prosecution led evidence of various shades. Balkar Singh (PM. 1) broadly stated about the circumstances in which the property statement of the appellant had been secured, that is, Exhibit P. 1 with Annexures P. 1/A. P. 2, P.3, P. 4 and P.5 signed by the appellant at the behest of the Vigilance Department Sri V.K. Jain (PM. 2), Executive Engineer got the house in question valued from Jawahar Lal Jain, S.D.O. its estimated value was Rs. 15168 and its rounded figure was Rs. 15,000/. Jawahar Lal Jain, S.D.O. (P.W. 6) introduced in evidence his report Exhibit P.F/1 with regard to the valuation of the house. Since the appellant was himself an Inspector in the Buildings and Roads Branch of the P.W.D. the attention of the witness was invited in crossexamination about the value and use of the appellant''s skill. The witness had to say that the employees of the Public Works Department, B&R Construction by virtue of their qualification can supervise a construction in a better manner as compared to a layman, but of course it depended on the experience gathered by the employee. According to this witness, the house had been constructed in 1974 and he had made the assessment in the year 1979. He put the house in two parts i.e., A and B. In Part B, he stated that there was no electrification. With regard to the electricity fitting charges, he corrected his report and said that instead of Rs. 898/ it should have been Re. 454/ and those were mathematically wrong. With regard to portion A of the house, which was built in 1974, he put the construction rate at Rs. 20/ per square foot and with regard to portion B, which was constructed in 197879, he put the rate of construction at Rs. 28/ per square feet. He made these assessments in accordance with the specifications prescribed in the department to feed their schedules and the assessment made by him included supervision charges which could be 2 to 3 per cent. He had to admit in crossexamination that he had a house in Basant Avenue, Amritsar, about which he was enquired about his resources of income as compared to the value of the said house by the Vigilance Staff. From this, it was sought to be urged that since the Vigilance Department had set up a case of the appellant''s using Government material surreptitiously at the site which allegation could not be proved, Jawahar Lal Jain, S.D.O. who himself was under a cloud with the Vigilance Department was alternatively made to inflate the value of the house. This will be seen in the context of the defence adopted and led by the appellant.

Tirath Singh (P.W. 8), Divisional Accountant of the Department, deposed that the appellant was appointed as a workcharge in the department on the payscale of 755140 on 14th May, 1964 and then promoted on 22nd December, 1965 as a Road Inspector in the pay scale of Rs. 60120 on regular basis. During the period from June 1971 to May 1978, he was paid a total amount of Rs. 34.331.70. In the statement of account Exhibit P.H. however, concededly he did not include the amount received by the appellant from 14th May, 1964 to 24th June. 1971, despite the fact that the appellant had been receiving regular increments as per his service, record.

Giani Harbhajan Singh, Vigilance Inspector (PW 10) deposed about the manner in which he initiated the case and ultimately the shape it took when he obtained from the department the appellant''s property returns. As noticed earlier, the first information report was recorded on 11th May, 1978 and on that very day, the Inspector had taken into possession the sale deed of the house in question. But for reasons best known to him, he had not mentioned in the case diaries the purpose of his obtaining the sale deed. He even did not record the statement of the vendor of the plot which was purchased by Smt. Balbir Kaur against cash consideration. The charge against the appellant under section 409, Indian Penal Code for use of Govt. material failed and the appellant was acquitted. The Inspector denied the suggestion of the defence that one of his constables. namely, Jarnail Singh had demanded bitumen from the appellant and on his refusal to oblige him. the cases against the appellant, one under section 409. Indian Penal Code and the other under section 5(1)(e) of the Prevention of Corruption Act had been planted.

The appellant in his statement recorded under section 313 of the Code of Criminal Procedure stated that he had, received emoluments to the tune of Rs. 18,000/ from 14th May, 1964 to 26th April, 1971 and another sum of Rs. 34331.70 from June 1971 to May, 1978. He claimed that he had been falsely implicated at the instance of Jarnail Singh constable who wanted to obtain departmental bitumen from him. He stated that he married in the year 1971 and that his wife and he had received shagan money to the tune of Rs. 4,000/ to Rs. 4,500/ out of which Balbir Kaur had purchased the plot in question in the year 1974. Another sum of Rs. 9,000/ allegedly were procured by him by the sale of his wife''s ornaments with the aid of his father. He claimed that his wife was doing tailoring work even before her marriage and continued to do so after marriage earning Rs. 300/ to Rs. 350/ mouth. Further, she also obtained a loan of Rs. 1500/ from his father and also a similar sum from her father. Initially, the house was partly constructed in 197475 and then the construction was resumed in the year 1977. He claimed that part or his earnings and his wife''s pin money went to contribute to the construction of the house.

The defence led by him consisted of Shri S.C. Virmani Retired Executive Engineer (D W. 1) who assessed the value of the house and fixed it at Rs. 12,300/ D.W. 2 Hari Dutt Dev gave the salary statement Exhibit D.W. 2/A, which disclosed that the appellant had from 14th May, 1964 to 21st June, 1971 received Rs. 17369/65 as salary. Darshan Singh (D W. 3), Superintendent, Construction Division, Bhatinda, deposed about the circular letter issued by the Government that Class III employees were under no obligation to send their property statements annually to their offices and that the appellant was a Class III employee though he conceded that a rule was existing in the Service Rules making it incumbent to file property statements. Resham Singh (D W, 5) a retired man aged 77 years deposed his personal knowledge about the wife of the appellant doing tailoring work and his getting clothes stitched from her, suggesting that her daily wages would be about Rs. 10/ per day. Puran Singh (D W. 6) father of the appellant stated about the sum acquired by Balbir Kaur as shagan at time of marriage and his having raised about Rs. 7000/ on Balbir Kaur handing over to him her ornaments Bakhshish Singh (D W. 7) is the father of Balbir Kaur who stated about the shagan money collected by his daughter at the time of marriage and his having paid Rs. 1500/ at the time of the resumed construction of the house in 1977 as help to his daughter. And lastly it is Balbir Kaur (D. W. 8) herself who deposed to the particulars afore referred to.

The sole charge against the appellant is that he, or his wife on. his behalf, is in possession of property disproportionate to his known sources of income. The only evidence led by the prosecution is opinion evidence of Jawahar Lal Jain, S.D.O, P.W.D. who has valued the house at Rs. 15,000/. Taking the miscalculation made by him the house roundedly was of Rs. 14,500/ But, as said before he was under a cloud with the Vigilance Department himself on account of his own house the value of which was enquired by the Vigilance Department to discover whether it was disproportionate to his known sources of income. As against this, the expert of the appellant, who is a retired Executive Engineer D.W. 1 Shri S C. Virmani states that the house in question could be priced at Rs. 12,300/. On the side of the prosecution. the appellant''s failures to file the property returns in time are being cashed upon But to my mind, these cannot absolve the prosecution from proving to the hilt that the property in the hands of the appellant was by all means beyond the ken of the appellant and he could not have constructed the house with the resources of income as an employee and the thrift and labour of his wife and help of his relatives. It is patent that the income of the appellant from 1964 to 1971 coming to Rs. 17369/ was not at all taken into account by the prosecution. It cannot be assumed that the appellant or his wife when they purchased the plot were totally broke and were not aware of their expectancies and their resources. The experts also differ negligibly on the valuation of the house. After all theirs are only opinions. Dust of suspicion cannot take the place of positive proof in a criminal case The explanation rendered by the appellant may or may not be wholly true but it is plausible and preponderates in favour of his having strained hard to have a shelter on his head and his family. Having carefully gone through the evidence of the prosecution as also the defence,it is my considered view that the case against the appellant is not tree from doubt. The benefit of it must go to the appellant.

10 For the foregoing reasons, this appeal is allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge.