Om Parkash vs State of Haryana

K.P.S. Sandhu, J.

This is an appeal filed by Om Parkash appellant against his conviction recorded by the learned Special Judge, Narnaul, who vide his order dated 1.2.1983, sentenced him to R.I for three years each and fine of Rs. 100/ in default R.I. for three months under section 5(2) of the Prevention of Corruption Act, 1947 and under section 161 of the Indian Penal Code respectively. The sentences were ordered to run concurrently. Mahabir Parshad, another coaccused of the appellant was also tried along but was acquitted of the charge since the case not stand proved against him beyond doubt.

In the month of October, 1981, the appellant was posted as Clerk in the office of Block Development and Panchayat Office (hereinafter `B.D. P.O.'') at Nangal Chaudary, Narnaul. The District Rural Development Authority (hereinafter called `D.R.D.A.'') used to disburse loans to needy members of the Cooperative Societies for the purchase of milch cattle. Application forms for the same were being supplied by the office of B.D. P.O. Nangal Chaudhary free of cost. Roshan Lal PW 6 approached Mahabir Parshad for the supply of the aforesaid forms at which he demanded Rs. 20/ as illegal gratification. Since Roshan Lal complainant did not have the money, he promised to pay the same the Mahabir Parshad in the evening. As Roshan Lal complainant did not want to pay the illegal gratification, he contacted his two colleagues of the department, namely Dharam Pal PW7 and Kuljit Singh PW8. All the three then went to the office of the Vigilance Bureau at Gurgaon. Roshan Lal complainant made a statement Exhibit PC before the Vigilance Inspector Ved Raj PW 12, on the basis of which formal first information report Exhibit PW/1 was registered at Police Station, Gurgaon. He produced one currency note of the denomination of Rs. 20/, Exhibit P1 before the Inspector, who initialled the same, noted down its number and treated the same with phenolpht halien powder and handed over the same to Roshan Lal complainant for being passed on as illegal gratification to Mahabir Parshad. Dharam Pal DW 7 was directed to act as a shadow witness. Roshan Lal complainant PW 6, Dharam Pal PW 8 and Kuljit Singh PW 8 went to the office of B.D.P.O. followed by the raid party headed by Vigilance Inspector Ved Raj PW 12. When they tried to pass on the money to mahabir Parshad, he told them to get the form from the appellant and pay the money to him. The money was consequently paid to the appellant and he put the same in the pocket of his shirt and handed over the forms to the complainant. On a signal being given by Dharam Pal PW, Vigilance Inspector Ved Raj PW 12, after disclosing his identity and observing due formalities apprehended the appellant and on his search the same currency note Exhibit P1 was recovered from his pocket. Its number tallied with the number noted down by the Vigilance Inspector. The appellant was asked to wash his hands in the solution of sodium carbonate. The colour of the same turned pink which was converted into a nip. In a similar solution, currency note Exhibit P1 was dipped. Its colour also turned pink. The pockett of the bushirt of the appellant, Exhibit P2 was also washed in a similar solution, the colour of the same also turned pink. Recovery memos Exhibit PE, PF, PG, PH and PK were prepared on the spot. At that time, Tara Chand PW9 and Jagmal Singh PW 10 were also present and they witnessed the recovery. Currency note Exhibit P1 and Bushirt Exhibit P2 were also taken into possession. After obtaining sanction for the prosecution, the appellant was sent up for trial.

When examined, under section 313, Cr.P.C. the appellant denied the recovery of currency note Exhibit P1 from him and deposed that he has been falsely involved in the case due to enmity. However, he did not lead any evidence in defence.

The prosecution, in order to establish its case, examined Hari Kishan, Head Assistant, Directorate of Panchayats, Haryana. He proved the sanction Exhibit PA for the prosecution of the appellant. Days Singh PW2 was tendered. Ram Chander DSP, C.I.D. Hissar PW3, and Kartar Singh Inspector PW4 partly investigated the case. Kharati Lal DSP put up the papers of this case before the Director of Panchayats for granting sanction for the prosecution of the appellant. Roshan Lal PW6 is the complainant. Dharam Pal PW7 is the shadow witness. Kuljit Singh PW8 is another eyewitness of the recovery and the passing on of the money to the appellant. Tara Chand PW9 and Jagmal Singh PW10 are the other two witnesses of the recovery. Pehlad Sharma PW11 prepared site plan Ex. PO. Ved Raj PW12, Vigilance Inspector, organised the raid and recovered the tainted currency note Exhibit P1 from the appellant.

It may be pertinent to note at the outset that Roshan Lal complainant PW6, Kuljit Singh PW8, Tara Chand PW9 and Jagmal Singh PW10 did not support the prosecution case and were declared hostile and were subjected to crossexamination by the Public Prosecutor. The conviction of the appellant has been recorded by the learned Special Judge, Narnaul on the basis of the statement of Dharam Pal PW7, the shadow witness and the investigating officer Ved Raj PW12. So obviously, there is no evidence on the record as far as the demand of the illegal gratification is concerned. The prosecution case itself was that it was Mahabir Parshad who was supposed to give the prescribed forms on demand by the members and it was actually he who demanded the illegal gratification from Roshan Lal complainant. It is not the case of the prosecution that the appellant ever asked the complainant or anybody for payment of illegal gratification at any time. Even the Vigilance Inspector Ved Raj PW12 has stated in his examination in the Court during the trial that he had instructed Roshan Lal complainant to hand over the tainted money to Mahabir Parshad as and when demanded by him. This appellant nowhere figured till Mahabir Parshad, Headclerk told Roshan Lal complainant that he should get the form from the appellant and hand over the money to him. The positive case of the prosecution is that it was Mahabir Parshad, coaccused of the appellant (since acquitted) who asked for the illegal gratification and the money was brought by the complainant for being paid to him. Even if the defence of the appellant is kept out of consideration, the prosecution case itself is that the appellant received the money and handed over the forms under the directions of Mahabir Parshad. Apart from the fact that there is no evidence that the appellant ever demanded the money from the complainant or any bodyelse, he might have received the money and handed over the forms innocently under the orders of his superior, In this situation, I don''t think any criminal liability can be fixed on the appellant. Consequently, the appellant is given the benefit of doubt and acquitted of the charge. Fine, if paid, shall be refunded to him.