State of H.P. vs Narinder Singh

Deepak Gupta, J.—This appeal by the State is directed against the judgement dated 3.12.2007 passed by the learned Special Judge, Chamba, in corruption case No. 08 of 2003 whereby he acquitted the accused of having committed offences punishable under Sections 8, 9 and 12 of the Prevention of Corruption Act, 1988 (here-in-after referred to as the Act). This is an unusual case where the complaint has been filed by a Government Official alleging that the accused attempted to give him a bribe of Rs. 10,000/-.

The prosecution story in brief is that on 10.12.2002 PW-8 Rakesh Kanwar was working as Additional District Magistrate, Bharmour, District Chamba. The allegation of the prosecution is that accused Narinder Singh entered the office of Shri Rakesh Kanwar, had some talk with him and then tried to give a bribe of Rs. 10,000/- to him by putting the same in the drawer of his desk. Thereafter, Shri Rakesh Kanwar rang up the SHO Bharmour and other police officials and lodged the complaint. List of the currency notes allegedly given by the accused were prepared and the police officials recorded the statements of the other witnesses. The accused was charged with having committed the offences aforesaid to which he pleaded not guilty and claimed trial. After trial he has been acquitted and hence this appeal by the State.

At the outset it would be pertinent to make reference to Section 7 of the Prevention of Corruption Act which makes it illegal for any public servant to take or accept any gratification other than legal remuneration in respect of any official acts performed by him. The words gratification and illegal remuneration have been defined as follows in Section 7 Explanation (b) & (c).

(b) "Gratification". The word "gratification is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

Section 12 of the Act reads as follows:-

Punishment for abetment of offences defined in Section 7 or 11 - Whoever abets any offence punishable u/s 7 or Section 11 whether or not that offence is committed in consequence of that abetment shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

It would also be pertinent to make reference to Section 20 sub-section (2), which reads as follows:-

(2) Where in any trial of an offence punishable u/s 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or as the case may be, without consideration or for a consideration which he knows to be inadequate.

Abetment has been defined in Section 107 of the Indian Penal Code, which reads as under:-

Abetment of a thing- A person abets the doing of a thing, who -

First - Instigates any person to do that thing; or

Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or

Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.

It is in the light of these legal provisions the evidence of the witnesses has to be examined. Shri Rakesh Kanwar, the complainant, appeared as PW-8. He stated that as ADM of Bharmour he was in-charge of the administration of that area. On 10.12.2002 when Rakesh Kanwar was sitting in his office accused Narinder Singh entered his office at about 10.45 a.m. The accused told the complainant that he had received the payment of the desks which had been supplied by him. The complainant told the accused that he had received certain complaints about the quality of the furniture supplied. The accused replied that he had taken care of the complaints. Thereafter the accused offered to supply double decker beds for the Government Senior Secondary School, Holi. According to Sh. Rakesh Kanwar, he explained to the accused that there must be a rate contract of those articles and these articles should be of good quality. The complainant was the sanctioning authority.

According to Sh. Rakesh Kanwar in the meantime PW-2 Shri Titar Singh Chauhan, Senior Assistant of his office came inside his office and had a discussion with the complainant with regard to purchase of some door mats. After PW-2 left the room the accused sought permission of Rakesh Kanwar to use the bathroom attached to his office. Thereafter, the accused went inside the bathroom. When he came out of the bathroom he did not sit on the chair but pulled out the drawer of the table of the complainant and put some currency notes in the drawer. The complainant immediately picked up the bunch of currency notes and asked the accused what he was doing and why he had kept the said currency notes in his drawer. On this the accused replied that he should have given this amount to the complainant earlier as this was his right (Hak). The complainant then reprimanded him and rang up the SHO Bharmour and informed him about this incident and asked him to come to his office.

The complainant also asked his Statistical Assistant Rakesh Kumar PW-1 to come to the office. He handed over the notes to Shri Rakesh Kumar to prepare a list of the notes. PW-1 accordingly prepared a list of these notes. In the meantime some other officials like Tehsil Welfare Officer and the Principal of the Government Senior Secondary School also came into the office of the complainant. The SHO Bharmour reached the office of the complainant within 15 minutes and then the complainant Sh. Rakesh Kanwar made a written complaint Ext.PW-7/A and handed over the same to ASI Prem Chand PW-7. Alongwith this complaint, the list of currency notes Ext.PW-1/A which was also signed by the complainant and the currency notes amounting to Rs. 10,000, i.e.20 currency notes of the denomination of Rs. 500/- each were sealed in a parcel Ext.PW-1/D in the presence of PW-1 Rakesh Kumar, PW-2 Titar Singh Chauhan and Prithi Pal Singh. These currency notes were taken into possession vide recovery memo Ext.PW-1/B. When the sealed parcel was opened in Court the numbers of the currency notes were tallied with the numbers given in the list Ext.PW-1/A. According to the complainant he is not sure why the accused offered him Rs. 10,000/-. Probably, it was with a view to procure further supply order. The cross-examination of this witness is to the effect that the accused had earlier supplied desks and benches for which payment had been made to the accused. The complainant has admitted that double decker beds were required for the Govt. Girls Hostel at Holi. He has also admitted that he could straight way call the tenders from the parties concerned but in this case he had still not invited tenders. He, however, stated that he had issued oral directions to the Principal of the hostel to be in touch with the contractors for supply of double decker beds.

The defence set up is that the complainant used to give supply orders to the manufacturers of furniture not belonging to Chamba district and according to the defence they had complained to the Deputy Commissioner, Chamba in this regard and therefore, a false case was lodged by the complainant against the accused. A suggestion was put to the witness that he had made most of the purchase from Mandi and Jassour. He admitted that in the complaint Ext.PW-7/A he had not mentioned about the quality of the material supplied by the accused. He also admitted that in the complaint he had not mentioned that when the accused kept the notes in the drawer, he reprimanded the accused. The complainant states that he was not aware that there was any resentment in the locality regarding his functioning. He states that he had had no idea whether the accused had made any complaint against him to his superior. He states that the police remained in his office from 11.30/11.45 a.m to 2.30 p.m.

PW-1 Rakesh Kumar Sharma was a Statistical Assistant. According to him at about 11.15 a.m., office peon Paras Ram, came to him and told him that he had been called by Rakesh Kanwar PW-8. The witness went into the office of the complainant and saw that the complainant was holding currency notes in his hand. Sh. Rakesh Kanwar told this witness that the accused had attempted to bribe him by putting the currency notes in the drawer of his desk. The witness was directed by Shri Rakesh Kanwar to prepare a list of the currency notes. He counted the notes and prepared a list which was Ext.PW-1/A. The list was signed by this witness. Thereafter the currency notes alongwith list were handed over to the police official who sealed the same and took the same into possession vide memo Ext.PW-1/B. The other witnesses to the seizure memo are Titar Singh Chauhan and Prithi Pal Singh. This witness also identified currency notes, seal, etc. In cross examination this witness states that the complaint was submitted by Sh. Rakesh Kanwar at about 1/1.30 p.m and by that time the police was already in the office of the complainant. The police remained there for about three hours and the entire proceedings took place in the office of Shri Rakesh Kanwar. The witness also states that he was not informed by Shri Rakesh Kanwar as to why the accused had offered bribe to him. The witness has been confronted with his statement recorded by the police wherein it was not mentioned that when he entered into the room of Shri Rakesh Kanwar the said Shri Rakesh Kanwar was holding the currency notes in his hands. The witness has also confronted with his statement with regard to the fact that in the statement Ext.DA it is not mentioned that Shri Rakesh Kanwar had told him that he had caught hold of the hands of the accused while the accused was putting currency notes in the drawer.

PW-2 Titar Singh Chauhan was the Senior Assistant. According to him he entered the office of Shri Rakesh Kanwar at about 10.30 a.m and had a discussion with him regarding the purchase of some articles like foot mats, etc. At that time the only other persons in the room were Sh. Rakesh Kanwar and accused Narinder. About 15 minutes later this witness left the room of Shri Rakesh Kanwar. The accused was still sitting there. At about 11.25/11.30 am he was again called through office peon. When he went there Shri Lakhan Pal Singh and Prithi Pal Singh were also present in the room of Rakesh Kanwar. According to this witness PW-1 Rakesh Kumar Sharma was not present at that time. Shri Rakesh Kanwar told this witness that the accused had offered bribe to him and since the PA/Steno was not available the complaint was dictated to this witness, which he typed out and handed over to Shri Rakesh Kanwar. There is no substantive cross-examination of this witness.

PW-3 Ambia Ram, lecturer, Govt. Senior Secondary School, states that he had a telephonic conversation with the accused regarding supply of double decker beds for the girls hostel at Holi but no correspondence took place in this regard. He admits in his cross-examination that his statement was recorded by the police two months after the incident.

PW-7 Sh.Prem Chand states that he was posted as ASI/I.O in the Police Station Bharmour where Shri Rakesh Kanwar was the ADM. On 10.12.2002 he was called telephonically by the ADM where Shri Rakesh Kanwar handed over the complaint Ext.PW-7/A alongwith details of currency notes Ext.PW-1/A which he endorsed and sent to the Police Station Bharmour for registration of the case and made a request to the SHO to depute some gazetted police officer for investigation of this case. This witness took into possession the currency notes produced by Shri Rakesh Kanwar. The witness admits that he brought the accused to the Police Station but states that he had not arrested him and according to him the witness was arrested by the Dy. S.P. PW-6 Shri Kishori Lal.

PW-6 Dy.S.P. Kishori Lal states that he was posted as Dy.S.P. of Police Headquarter at Chamba at the relevant time. According to him he was deputed to go to Bharmour on 10.12.2002 when he recorded the statement of the complainant and the witnesses and carried out the investigation. He also arrested the accused Narinder Kumar on the very same day. In cross-examination he stated that he reached Bharmour at about 6.30 p.m and visited the office of the SDM on the next day and prepared the site plan the next day.

he defence also led evidence by examining DW-1 Rakesh Kumar, Statistical Assistant, who stated that during the period when Shri Rakesh Kanwar was the ADM he gave sanctions for purchase of various articles to various departments in Bharmour area but the record of such sanctions are not available with him as no such copies of the sanction orders are retained in the office of the ADM. In cross-examination he admitted that other departments who seek sanction for purchase of any item in Bharmour had to send the file to the ADM because of the single line administration hierarchy in Bharmour.

DW-2 R.K.Mahajan is also running a steel factory at Chamba. According to him the furniture manufacturers of Chamba had formed an association under the name and style of Chamba Steel Furniture Manufacturing Association. The accused was also a member and cashier of the association. According to this witness Shri Rakesh Kanwar used to get steel furniture purchased from Mandi and Jogindernagar and since their association did not get any supply order their association led by accused Narinder Kumar had agitated the matter before the Deputy Commissioner, Chamba. In cross-examination he admitted that he made the copies of the representation sent to various authorities but he had not brought any such record to Court and in cross-examination he denied the suggestion that the firms at Mandi and Jogindernagar are approved rate contractors and stated that they also have rate contract with the State Government. This is the entire relevant evidence.

The learned trial Court acquitted the accused on the following grounds:-

Firstly that the case had been initially investigated by SI Prem Chand PW-7. According to the learned trial Court the matter was not investigated by an authorized officer and there had been miscarriage of justice especially when the statement of the complainant was recorded by more than one investigating officer including PW-9 Dr. D.K.Chaudhary. The other ground which weighed with the learned trial Court was that there was no occasion for the accused to offer the bribe for getting the supply of double decker beds as no quotation had been invited by PW-8 and there was no correspondence in this behalf and therefore according to the learned trial Court there was no motive to give the bribe. The learned trial Court also came to the conclusion that the defence version that the ADM was annoyed with the accused was a plausible and reliable version. Lastly, the learned trial Court held that it is not proved by the prosecution as to what conversation actually transpired between the accused and the complainant and therefore gave the benefit of doubt to the accused.

I have heard Shri Vivek Thakur, learned Additional Advocate General for the State and Shri N.K.Thakur, learned Senior Advocate for the accused.

On behalf of the State it has been urged that the learned trial Court did not take into consideration the provisions of the Prevention of Corruption Act especially Section 20(2). Shri Vivek Thakur, learned Addl. A.G. submitted that if it is proved that some money was offered then a presumption had to be raised that it was by way of illegal gratification. It was further urged by Shri Vivek Thakur, Addl. A.G. that the learned trial Court wrongly held that the investigation was not conducted by the authorized officer. According to PW-7 Prem Chand he did not do anything except receive the complaint and the currency notes. Other investigation was done by the duly authorized officer. In any event this will not vitiate the trial. He submits that it is the quality of the evidence and not the quantity which is important and normally a bribe will be offered in secrecy, in the absence of any witness and to expect that there should be a witness is to make the Act unworkable. He submits that the version of the prosecution witnesses must be accepted since it has ring of truth about it and the defence taken by the accused is highly improbable and no material has been placed on record to support the case.

As pointed out earlier Section 20(2) clearly lays down that in any trial relating to an offence punishable u/s 12 if it is proved that any gratification is offered by an accused person it shall be presumed, unless the contrary is proved, that the accused offered or gave or attempted to give that gratification as a motive or reward as mentioned in Section 7 of the Act. Our Courts, more often than not, have ignored the provisions of Section 20 of the Act.

The Apex Court in State of Andhra Pradesh Vs. C. Uma Maheswara Rao and Another, while dealing with Section 20(1) of the Act, held as follows:-

When the sub-section deals with legal presumption, it is to be understood as terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied.

xxx

Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton, L.J. in Hawkihs v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows:

Proof does not mean proof to rigid math-ematical demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion.

The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to pre-sumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.

Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

We must keep the aforesaid principles in mind while deciding the case.

The learned trial Court held that the investigation had not been carried out by the authorized officer and relied upon the judgement of the Apex Court in State Inspector of Police Visakhapatnam vs. Surya Sankaram Kurri 2006(3) Crimes 316 (SC) and State of Andhra Pradesh Vs. T. Venkateswara Rao, . I am of the considered view that both the judgements were totally misapplied by the learned trial Court. It is well settled law that mere lodging of an F.I.R or receiving of a complaint does not amount to investigation. In this regard reference may be made to the judgement of the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, wherein the Apex Court clearly carved out the difference between registration of a case and investigation of a case u/s 154 of the Code of Criminal Procedure. When information relating to commission of cognizable offence is given orally then the same should be registered and then singed by the person giving the information. A written complaint/information must also be signed. The investigation of the case does not start at this stage. It is only recorded in the books that a complaint has been made which requires investigation. Para 40 of the judgement is relevant for this purpose and reads as follows:-

The core of the above sections namely 156, 157 and 159 of the Code is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation or any cognizable offence is exclusively within the domain of the investigating agencies over which the courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he things fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.

In the present case, PW-7 Prem Chand could not investigate the case and therefore requested his SHO at Chamba to depute a gazetted officer to investigate the matter. While dealing with this issue we must remember that Bharmour is a remote tribal area of Himachal Pradesh. It is virtually isolated and there are very few gazetted officers posted there. The law can never require the impossible to be performed. Even if part of the investigation had been carried out by Prem Chand in the absence of a Gazetted Officer it could not be said to be illegal. Should the police official wait for an officer specially empowered in this behalf and fail to record evidence or collect material which incriminates the accused only because he is not the empowered officer? In this case, the empowered officer was at Chamba, which is about 70 kilometers away and there may be cases which require immediate action and investigation and if the empowered officer is not present the junior officer can carry out the investigation. It is only if there is miscarriage of justice or prejudice caused to the accused then such investigation is to be held to be bad. In the present case it has not been pointed out to me what prejudice is caused to the accused. In fact, other than taking the complaint and the currency notes no investigation was done by PW-7 Prem Chand. Therefore, I am of the considered view that the learned trial Court gravely erred in holding that the investigation was unfair and could not be relied upon.

The judgement in Surya Sankaram Kurri''s case does not help the accused at all. In fact the judgement is totally contrary and goes against the accused especially on the point of presumption referred to above. It appears that the learned trial Court did not even care to read the judgement in full.

Before coming to the issue of appreciation of evidence it would be pertinent to reiterate that Bharmour being a tribal area there is a single line administration and lot of powers were vested with the Resident Commissioner since the heads of various departments or competent authorities are not available in Bharmour. The Resident Commissioner/ADM is vested with powers of the sanctioning authority even with regard to the departments which would not normally be under his control. As far as the complainant is concerned, his statement is categorical that he was offered a bribe by the accused, who told the complainant that this money should be given to the complainant earlier and was his right ''Hak''. There is no reason to disbelieve the statement of the complainant which stands fully corroborated by the statements of PW-1 and PW-2. There are no material contradictions in the statements of these witnesses. We must remember that an offer of bribe will not be made openly or in public but it will be made secretly. The accused does not deny his presence in the office of the complainant. It also stands proved on record that for about 15 to 20 minutes the accused and the complainant were alone in the office. It also stands proved that the accused had made supply of certain furniture and received payment for the same prior to the date of occurrence. According to the prosecution another contract for supply of double decker beds was in the offing but the fact is that no order in writing had been placed nor tenders had been invited. However, the statements of PW-8 coupled with statement of PW-3 do indicate that some talk for purchase of beds was going on. Be that as it may, if this Court comes to the conclusion that the accused was offering the currency notes to the complainant or putting the same in his drawer by saying that the same was a right of the complainant, this in my opinion, would amount to gratification.

In Black''s Law Dictionary, "gratification" is defined as "a recompense or reward for services or benefits, given voluntarily, without solicitation or promise". But in Oxford Advance Learner''s Dictionary of Current English the said word is given the meaning "to give pleasure or satisfaction to".

Normally, we deal with people who receive bribe and traps are set up to capture the receiver of the bribe. It is rarely that a person who was offered a bribe becomes the complainant. This by itself is no reason to throw out the evidence of the complainant. The complainant was a young but senior officer. The defence set up is that he was irritated with the accused since the accused was the spokesman of the association of furniture manufacturers at Chamba and had made a complaint to the Deputy Commissioner against the complainant. However, other than the bald statement of DW-2 there is nothing to support this version. It is not even a plausible version. DW-2 admits that they used to maintain a copy of record of all the representations made by their association but no copy of the resolution or representation made to the Deputy Commissioner, Chamba has been placed on record. True it is that the accused is not to prove its defence but even to make it plausible he must place some material on record to support what he is saying.

When the bribe is offered in secrecy one fails to understand how the learned trial Court expects that there should be evidence to corroborate the version of the complainant with regard to conversation which took place. One cannot ask for the impossible to be proved. When one person alleges and the other denies then the truth has to be unraveled from the surrounding circumstances. Why would the complainant take Rs. 10,000/- out of his money just to fix the accused? Admittedly, there is no enmity between them except for the allegation that the complainant may have been irritated by the accused for filing a representation against him. No person would go to the extent of fabricating a false case merely on this ground.

This very accused was given a supply order for supply of 180 double desks, 64 black boards with stand on 7.3.2002 when admittedly the complainant was posted as ADM in Bharmour. It is the same accused who had earlier made supplies and received money for the same who is now turning around and taking up this defence. The attending and subsequent circumstances prove the guilt of the accused beyond reasonable doubt. The witnesses PW-1 and PW-2 state that they saw the accused in the office of the complainant. PW-1 was handed over the currency notes and prepared a list of the notes. PW-2 drafted the complaint Ext.PW-1/A, which was handed over to the police. The complaint Ext.PW-1/A is a detailed complaint and by and large it tallies with the version of the prosecution witnesses. A few minor contradictions have been pointed out by Shri N.K.Thakur, learned Senior Counsel for the accused, in the statements of the witnesses. Furthermore, according to Shri N.K.Thakur, learned Senior Advocate, the prosecution should have examined Peon Paras Ram and Sh. Lakhan Pal Singh. It is not the quantity but the quality of the witness which is material. The contradictions pointed out are that as per PW-1 when he entered the room the complainant was holding the money in his hands and thereafter he prepared the list of currency notes, etc. PW-2 does not say a word about the recovery memo. Further, according to PW-1, after the police reached the spot the complaint was given to the police at about 1 or 1.30 p.m, which means that the complaint was prepared in the presence of the police. However, this fact was not denied by the complainant itself. He simultaneously called the police and also started dictating the complaint to PW-2. The contradictions in fact are no contradictions and are insignificant that it is not necessary to refer them in detail. When the case of the prosecution is proved by examining two-three witnesses it is not necessary to examine the other witnesses. Keeping in view all these factors, I am of the considered view that the judgement delivered by the learned trial Court is totally perverse and has been passed without appreciating the evidence or the legal provisions. Therefore, the same is set-aside and the accused is convicted for having committed an offence punishable u/s 12 of the Prevention of Corruption Act, 1988. Now the case be put up for hearing the accused on the quantum of sentence on 9th July, 2012. Bail bonds of the accused are cancelled who is directed to be produced in Court on the said date. The Registry is directed to take necessary follow up action.