Ramesh Kumar vs State of Haryana

A.N. Jindal, J.—Head Constable Ramesh Kumar appellant-accused (herein referred as the accused) was prosecuted for the offences u/s 7 and 13(1)(d) of the Prevention of Corruption Act, 1988, on account of receiving a sum of Rs. 12,000/- as bribe money, consequently, vide judgment dated 19.02.2008, passed by Special Judge, Panipat, he was convicted and sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 5,000/-.

In nut shell, the facts are that one Sat Narain had a land dispute with one Surat Singh of his village in which Sat Narain was on the winning side but still Surat Singh and his family members wanted to make encroachment over the said land. Therefore, Sat Narain complainant(herein referred as the complainant) moved an application before the Superintendent of Police for taking action against them. The said application was forwarded to SHO of the Police Station, Israna, for necessary action. After presentation of the said application on 7.11.2006, Surat Singh and his family members gave beatings to the Complainant. Regarding which Complainant moved an application Ex.PG before SHO, Police Station Israna on the same day which was entrusted to the accused. The complainant then met the accused for taking legal action and to visit the place of occurrence but the accused demanded money if he wanted him to visit the place of occurrence.

On assurance made by the Complainant, the accused went to the place of occurrence and found that Surat Singh and his family members were present over the disputed land. The complainant asked him to challan those persons but the accused demanded Rs. 12,000/- as bribe. The complainant did not want to pay the bribe, therefore, he approached Satish Balan Assistant Superintendent of Police, Panipat (PW-10) and complained against the accused for demanding the bribe of Rs. 12,000/-. Satish Balan (PW-10) joined Arjun Dass Sachdeva, Tehsildar, Israna, as independent witness in the raiding party. The complainant handed over Rs. 12,000/- to Assistant Superintendent of Police, which were treated with phenolphthelin powder and after preparing the required memos handed over the same to the complainant for making payment to the accused. Head Constable Suresh Kumar, Reader to ASP was appointed as a shadow witness with a direction to accompany the complainant to the Police Station Israna and to make a signal to the waiting party after passing of the money by the complainant to the accused. The police party also followed them. On reaching there, the complainant and the shadow witness (who was in plain clothes) went inside the police station whereas the remaining members of the raiding party stood out side at the gate of the Police Station in wait of signal. On demand, the complainant handed over the money i.e. Tainted notes to the accused. At this, the police party raided him and on personal search of the accused, he was found in possession of the tainted notes in front right pocket of his shirt. The hands of the accused were got washed where upon the colour of the water turned pink, tainted notes so recovered, were also got washed separately in a solution of sodium carbonate. The colour of the solution on each such wash turned slightly pink. All the four wash solutions were put into separate nips and taken into possession vide Memo. Ex.PF.

After completion of necessary formalities and recording the statements of the witnesses and on completion of investigation, challan was presented in Court.

The accused was charged u/s 7 and 13(1)(d) of the Prevention of Corruption Act(herein referred as an Act) to which he pleaded not guilty and claimed trial.

Prosecution in order to substantiate the charges examined 11 witnesses.

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and further pleaded that he was innocent and falsely implicated in the case at the instance of PW Suresh Kumar, Reader to Shri Satish Balan, ASP, who was earlier working with him. He had also disclosed that he had made a complaint against Suresh Kumar, and for said reason Suresh Kumar got him implicated in this case falsely. However, he did not lead any evidence in defence.

Arguments heard and record perused.

Sat Narian (PW-6) had not supported the prosecution case. Therefore, he was turned hostile. He admitted that he had a land dispute with Surat Singh and his family members and as Surat Singh and his family members wanted to forcibly occupy his land and that he had made a complaint against them to Superintendent of Police, Panipat. He also admitted that on 7.11.2006, he was assaulted by the women folk of the opposite party and he had moved an application Ex.PG to SHO, Police Station, Israna, for taking legal action against them, but denied all other allegations including that the accused ever demanded bribe money from the complainant or that the latter received this amount. The main ingredients for constituting an offence u/s 13 of the Act i.e., the demand of the bribe money and acceptance thereof for a consideration in order to award some favour to the former do not established. Except Sat Narian PW-6 there is no other witness to prove the demand of bribe. It is settled that prosecution has failed to establish any demand which was made by the accused. As regards the shadow witness, namely Suresh Kumar, no doubt he has supported the prosecution case regarding the recovery of Rs. 12,000/- from the pocket of the shirt of the accused but he appears to be inimical one. Here I need to reproduce a few lines of the cross examination of the Head Constable Suresh Kumar (PW-4):-

xxxmn. by Shri Harjit Singh, Counsel for accused.

The ASP Shri Satish Ballan was posted at Panipat probably w.e.f.01.09.2006 or 1.10.2006. I was working as Reader to Shri Satish Ballan from the day of his appointment at Panipat. I knew the accused since prior to the occurrence of this case. Myself and accused H.C.Ramesh Kumar remained posted together in Police Post, Krishanpura at Panipat. It is correct that a dispute had arisen between me and H.C. Ramesh Kumar. It is also correct that H.C. Ramesh Kumar had complained against me, but the matter was patched up with the intervention of the Incharge of the Police Post.

From the perusal of the statement of Suresh Kumar, it would not be unjust to conclude that there was a dispute between Suresh Kumar and the accused when both of these remained posted at Police Post Krishanpura at Panipat and it is also not in dispute that at the time of raid Suresh Kumar was posted with ASP Satish Ballan, who was the investigation officer of the present case. Be that as it may, Suresh Kumar was official witness and there may be 100 things behind the curtain which may have instigated Suresh Kumar to have vengeance against the accused with whom he had enmity.

In any case, from the testimonies of Suresh Kumar, Reader to ASP and Subash Chander, the recovery of Rs. 12,000/- may be proved yet I must say that the case of the prosecution is weak qua the "demand" aspect of the case. The complainant has resiled from his statement. Suresh Kumar shadow witness is an inimical witness. Therefore, the accused deserves benefit. I find merit in the contention that mere recovery of money is not sufficient to prove the acceptance so as to attract the provisions of Section 7 of the Act. Presumption to Section 20 cannot be attracted. Similar observations were made in case V. Venkata Subbarao v. State represented by Inspector of Police, A.P. 2007 (1) R.C.R. (Cri) 519 wherein, it was observed that in absence of a proof of demand, the question of raising the presumption would not arise. Similar, observation were made by the Apex Court in case Union of India Thr. Inspector, CBI v. Purnandu Biswas, 2005 (4) RCR (Cri) 517, in this case, the demand of illegal gratification by the respondent has not been proved. Furthermore, Section 20 of the Act is not attracted as the respondent had been charaged for commission of an offence u/s 13(1)(d) read with Section 13(2) of the Act.

The other judgments delivered by the Apex Court in this regard is C.M. Girish Babu v. C.B.I., Cochin 2009 (2) R.C.R.(Cri) 134 : 2009(2) R.A.J. 101 : 2009 (2) SCC 620 and Subhash Parbt Sonvane v. State of Gujarat, 2002 (3) RCR (Cri) 188. It would also be significant to mention here that in case Union of India through Inspector, CBI v. Purnandu Biswas, 2005 (4) RCR (Cri.) 517, the Apex Court while relying upon the judgment M. Narsinga Rao Vs. State of Andhra Pradesh, , further observed that it was not enough that some currency notes were handed over to the public servant to make it as acceptance of gratification, prosecution has further duty to prove that what was paid amounted gratification.

Regarding the fact that mere recovery of tainted money is not sufficient to prove the offence. This High Court also while relying upon Subhash Parbt Sonvane''s case (supra) the similar view was taken in case Suresh Kumar v. State of Haryana, 2009 (4) RCR (Cri) 608.

In the present case, the conduct of the Investigation Officer is also not above board. It is not explained as to why Suresh Kumar Head Constable who was inimical toward the accused, was joined as a shadow witness as he being inimical could go to any extent to say against the accused. Furthermore, the Investigating Officer did not get himself searched from the accused before effecting search upon him. It would also significant to mention here that the accused was to hold an enquiry in the complaint made by Sat Narain. There being no FIR, he could not neither arrest or investigate into the matter and proceed against the accused. Thus, there was no occasion for him to help the complainant as such there was no opportunity with the accused to demand bribe. Since, the accused could not arrest the accused, therefore, question of paying money by the complainant did not arise. Thus, taking stock of the aforesaid circumstances and the material discrepancies in the statements of the prosecution witnesses, interference in the impugned judgment has become inevitable.

Resultantly, I accept this appeal and while giving benefit of doubt, the accused is acquitted of the charges framed against him. The bail bond and surety bond furnished by him stand discharged and he is directed to be set at liberty forthwith. Fine if any, deposited be refunded.