Sat Pal Dhawan vs State

A.N. Jindal, J.—The crucial question in this case is "whether a dishonest complainant who could try to cheat the bank by fetching loan, for the second time which could earn him subsidy, by concealing material facts and particularly when shadow witness has not been examined and the official witness did not support the prosecution case, still the accused could be convicted."

The Special Judge, CBI, Patiala, vide judgment dated 28.04.2000 convicted the appellant-accused (herein referred as ''the accused''), Manager of the State Bank of Patiala Branch Dhilwan Kalan, District Faridkot under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, for accepting the bribe of Rs. 500/- for releasing the loan already sanctioned to complainant under Prime Minister Rojgar Yojna Scheme, and sentencing him as under:

Under Section 7 of the Prevention : To undergo R.I. for a of Corruption Act, 1988. period of two years and to pay a fine of Rs. 1,000/-

Under Section 13(1)(d) read with : To undergo R.I. for a 13(2) of the prevention of. period of 1 1/2 years and Corruption Act, 1988 to pay a fine of Rs. 500/-

The facts, as involved in the prosecution case, are that Gurtek Singh-complainant (herein referred as ''the complainant'') had applied for a loan under the "Prime Minister Rojgar Yojna Scheme" through the General Manager, District Industries Centre, Faridkot vide application Ex.PW1/1, who recommended for advancing loan to the tune of Rs. 50,000/-. On recommendation made by the Industries Centre, the complainant met the accused, who demanded a sum of Rs. 2500/- as bribe releasing the loan, however, the bargain was settled at Rs. 500/-. The accused had agreed that he would accept the gratification from the complainant at a latter''s shop, which was situated on the other side of the road opposite bank premises. The complainant went back making a lame excuse for arranging the money and met Harinder Singh, his cousin and told him about the demand of bribe by the accused from him. Complainant along with Harinder Singh went to the office of Deputy Superintendent of Police, Vigilance Bureau, Faridkot. Baljit Singh DSP Vigilance (PW8) recorded his statement Ex.PW1/2. DSP after taking 10 currency notes of the denomination of Rs. 50/- each applied phenolphthalein powder on the said currency notes and after satisfying that the complainant had no other money, handed over the same to him. He further directed him to hand over the money only on demand by the accused and he would not shake hands with the accused before or after giving the same to him. Harinder Singh was appointed as shadow witness. He was to signal the police party on receipt of the bribe money. Demonstration with regard to the aforesaid facts were given. Phenolphthalein powder was also displayed vide memo Ex.PW1/3, which was attested by Gutek Singh and Harinder Singh. The statement Ex.PW8/1 made by the complainant was forwarded to the Police Station Vigilence Bureau, Ferozepur Range, Ferozepur, whereupon the case was registered.

Thereafter, the DSP associated Baljit Singh, another recovery witness and laid a trap. On 27.11.1998, the DSP while reaching the bank directed the complainant and the shadow witness Harinder Singh to proceed to the office of the accused whereas the DSP and the other witnesses remained in ambush awaiting for the signal of the shadow witness. However, when they were near the bank building, the accused met them and told them to wait for at the nearby electric goods shop, run by the complainant''s father. After about half an hour, the accused went there, demanded the agreed amount, whereupon complainant passed the tainted currency notes which the accused put in his left pocket of the pant. On giving signal by the shadow witness, the DSP (Vigilance) Baljit Singh alongwith other recovery witness, raided the shop and apprehended the accused. After giving his identity, the DSP (Vigilance), arranged a glass of water in which Carbonate was added. The accused was directed to wash his hands in that solution which turned pink. The said solution was put in a nip and was sealed with the seal bearing impression ''BS'' and then the said nip was taken into possession vide memo Ex.PW1/8, attested by the complainant, Harinder Singh and Baljit Singh witnesses. On further search of the accused, a sum of Rs. 500/- were recovered from the left pocket of the pant. On comparison of the currency notes with the memo, the same were found to be identical and after converting the currency note into a parcel, same were taken into possession. On further search, the accused was found in possession of Rs. 5262/-, one identity card, one driving licence, telephone diary and watch, which were taken into possession vide memo Ex.PW1/7. On making the pocket wash of the pant, the water turned pink and it was put in another nip Ex.P12. The pant Ex.P13 was also taken into possession and all other formalities were also completed. However, since the accused was a Bank Manager, as such he being a Central Bank employee, the case was referred to CBI, who vide endorsement Ex.PW2/5 registered its own FIR Ex.PW5/1. Sh. S.S. Gurm, Inspector, CBI, Chandigarh, also conducted the investigation and after taking the sanction Ex.PW5/3, the challan was presented in Court. Charges against the accused for the aforesaid offences were framed to which he pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined Gurtek Singh complainant (PW1), Baljit Singh,Inspector, Food & Supplies Department, the recovery witness (PW2), Narinder Goel, Branch Manager, State Bank of Patiala, Dhilwan Kallan Branch, Faridkot (PW3), proved the copy of the letter Ex.PW1/10, Head Constable Sukhbir Singh, (PW4), proved the copy of the FIR Ex.PW4/1, S.S. Gurm, Inspector, CBI (PW5), Investigating Officer, R.K. Sharma, General Manager, State Bank of Patiala (PW6), proved the sanction letter Ex.PW6/1, Constable Dilbagh Singh (PW7), proved about the delivery of the copy of FIR Ex.PW7/1 to Chief Judicial Magistrate and Baljit Singh, DSP, (Vigilance), Trap Laying Officer, also proved the investigation. PW Harinder Singh, shadow witness, was given up as having gone to Libnan.

After tendering into evidence the copy of the Forensic Science Laboratory Report Ex.PW5/4, the prosecution closed its evidence.

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him except that he was posted as Branch Manager, State Bank of Patiala at the relevant time. He further explained that after sanction of the loan to the complainant, he was informed by the Assistant concerned that the complainant was not eligible having already availed of the subsidy under that very scheme. This fact was conveyed to the complainant and as such, he felt annoyed. On the date of occurrence, the complainant informed the accused that Sh. Mantar Singh, M.L.A., wanted to see him at his father''s shop. At this he went to the shop where he was nabbed by the Vigilance Department. He has denied the demand or acceptance of any bribe money. In defence, he examined K.N. Sharma, project Officer, Nitcon, Bathinda (DW1), who proved about the complainant loanee, having got the training from 17.02.1998 to 27.02.1998. He has proved the entries in the registration-cum-attendance forms of the loanees to whom the training was imparted. The registered form Ex.DW1/1 of the complainant was also prepared by this witness. On scrutiny of the evidence, the trial ended in conviction.

Arguments heard. Record perused. It is a case where the conduct of the complainant is unrevealed and he wanted to cheat the Government by concealing the material facts. The shadow witness, who though his neighbour as well as his cousin, was the best witness to unfold the story with regard to the demand and acceptance of the money, has been given up on the ground that he had gone to Libnan but there is no denying the fact with regard to going to Libnan, was a false excuse as there was no such treaty in between Libnan and India for issuing immigration to the Indians for staying in Libnan. Anyway, the official witness namely Baljit Singh, who was to corroborate the recovery of the tainted money, has not supported the prosecution case and he was turned hostile.

Now we are left with the testimony of the complainant only to prove the demand and acceptance. No doubt, the testimony of the complainant could be believed if he was genuine in his conduct, but in the present case the complainant Gurtek Singh appears to be dishonest and was not of a good conduct. He concealed the material facts and applied for loan under such a scheme over which he had already taken the loan and earned subsidy and he could not apply for the same for second time by misrepresentation as he could not avail the same for second time. When these facts came to the light of the accused, as pointed out by his assistant, the complainant felt annoyed and implicated him in this case. Gurtek Singh complainant has stated that the accused told him on the day of raid i.e. 27.11.1998 that his loan has been sanctioned whereas during the cross-examination he has admitted that he was informed during his training on 21.02.1998 by the accused that his loan was sanctioned. It would be pertinent to mention here that when once a loan was sanctioned then least left behind was disbursement thereof and it was in the usual process that loan after sanction was to be disbursed by the accused. But as a matter of fact, this loan could not be paid to the accused as it had come to the notice of the bank that he had already availed this loan from the bank and he could not be given this concession for the second time. The complainant himself has admitted this fact during cross-examination while admitting that in the year 1993, loan of Rs. 15,000/- was sanctioned by that very bank under the ''Prime Minister Rozgar Yojna Scheme'' and he had utilized the said limit for 2-3 years. The subsequent loan was under the same scheme for which he was to earn subsidy to the extent of 1/4th.. He further admits as under:

I knew that second loan under the same yojana was not admissible, however, I had applied for the second loan on the suggestion of the accused, who had told that I would not be given subsidy nor I shall be given this limit for the second time. (Later portion voluntarily). It is wrong to say that I had now named Satpal Dhawan wrongly who have suggested to me applied for loan. In my second application for loan, I had not made any mention of the previous loan.

From the aforesaid extract of the statement of the complainant, he appears to be mincing the matters and is making false statement. He could be granted loan for the second time without extending subsidy to him then he must have mentioned in his second application that he had availed of the loan earlier but concealment of this fact by the complainant reveals that he was not fair in his conduct and he wanted to get subsidy from the bank against the second loan by hook or crook.

The other point, which destroys, the case of the prosecution is that in the FIR, it is mentioned that money was to be given at the shop of the father of the complainant whereas from the statement of DSP Baljit Singh (PW8), it appears that the trap was laid over the office of the accused. However, after sometime, the accused and the shadow witness came and told that the accused would come to his shop and take the money there. Anyway, this statement made by Baljit Singh, DSP (PW8), is contradictory to the statement of the complainant wherein he made the following statement:

xxx xxx xxx xxx When we were going towards the Bank building, outside the bank building, the accused Manager Satpal Dhawan met us. The accused told us that it would not be safe to accept the money in the office and we should go to the nearby shop and he would be coming there. I alongwith Harinder Singh went to the nearby shop, which is run by my father and sometime my brother and I also sit there. After about half an hour, the accused came there.

xxx xxx xxx xxx

This serious contradiction in the statement of the two witnesses cannot be treated as light to place reliance upon the testimony of the complainant. Had the accused met them outside the bank, then PW8 Baljit Singh would not have made the statement that the witnesses came from the bank and informed him and if complainant had informed that the accused would receive the money at the shop then the DSP would have laid ambush at the shop. None out of father or brother of Gurtek Singh, who are stated to be sitting on the shop, had been examined. None of the witnesses out of the passersby was examined to corroborate if any raid was conducted at the shop of the complainant by the Vigilance Department. The other improbabilities, which go to the roots of the case, are that if as per PW8 DSP Baljit Singh, the accused had met the complainant in his office then he could have received the money, in his office which could be treated as most convenient and secured place to accept the money. Assuming for the sake of arguments, the shop of the complainant was quite across the road and the parties were acquainted with each other as the complainant was also previous loanee. In these circumstances, there was no hurry for the accused to go to the shop of the complainant forthwith during duty hours to receive the bribe money as the loan was not going to be disbursed immediately and he could collect the same in the evening.

Not only this, PW2 official witness namely Baljit Singh, Inspector, has also not proved the recovery of the tainted money from the accused. He stated that when they reached the shop of the father of the complainant then DSP had told him that the accused was having Rs. 500/- currency notes whereas the accused was saying that the notes were thrusted in his pocket forcibly and when he had entered the shop he had seen those currency notes on the table and he was made to sign the memos by the DSP under his hands. The other glaring circumstance which goes to affect the substratum of case is that if money was found from the left pocket of the pant of the accused then those currency notes must have been touched with that currency notes but the said currency notes were not got washed alongwith the tainted money. Here it is noticed that statement of Baljit Singh (PW8) is contradictory to the recovery of currency notes from the left pocket of the pant of the accused as he did not record in his statement that currency notes were recovered from the left pocket of the pant of the accused. The defence of the accused that the money was thrusted in his pocket stands proved from the admission made by the complainant (PW1) that left pocket of the pant Ex.P13 was torn by 2 1/2 inches. This admission made by him is reproduced as under:

xxx xxx xxx xxx It is correct that at present left pant pocket is torn from one side, while right and back pockets are properly stitched. It is correct that the tear is about 2/2 1/2 inches in length from one side of the pocket.

xxx xxx xxx xxx

The pant Ex.P13 was taken out of the parcel and opened in the Court. It is not the case of the prosecution that the case property was ever tempered with till it was opened in the Court. As such, the tear of the left pocket of the pant by 2 1/2 inches in length supports the defence version that the complainant and the police party tried to thrust the money in his pocket. Resultantly, the pocket was torn. No shopkeeper from the side by shops was called to prove the recovery. Since the loan was already sanctioned, there was no occasion for the accused to demand the bribe. Had he ever such intention then he would have demanded the bribe before issuing him letter Ex.P10/1 for sanctioning the loan, which was delivered to him when he was already on training since 17.09.1998. All this goes to show that the complainant was not fair in his conduct. He while concealing the fact with regard to availing of the loan earlier under the said scheme again applied for loan under the same scheme with intention to avail the subsidy and without mentioning the fact with regard to receipt of the loan earlier, he got the loan recommended and sanctioned from the industrial Department for the second time and somehow it came to the notice of the bank authorities, as such, and they stopped the loan, assuming that the accused was creating hurdles in disbursement of the loan to him, he got him implicated in this false case. The shadow witness joined was none-else but was his own cousin. He, being interested witness, could not be believed. Anyway, he was not examined by him on a false pretext.

Thus, taking stock of the whole conduct of the complainant, it is difficult to place reliance on his sole uncorroborated testimony with regard to demand as well as acceptance of the gratification. Resultantly, the trial Court has not taken note of the aforesaid facts and circumstances of the case and has not properly appreciated the evidence led by the prosecution.

In the wake of the aforesaid discussions, I accept this appeal, set aside the impugned judgment and acquit the accused of the charges framed against him and direct him to set at liberty. Bail bond/surety bond furnished by him stand discharged. Fine, if any deposited, be refunded.