State of Jammu and Kashmir vs Ram Saroop Sharma

Arun Kumar Goel,Judge.

This appeal at the instance of State is directed againt the judgement passed by Special Judge, Anti Corruption (1 st Additional District and

Sessions Judge), Jammu dated 30188. By means of impugned judgement, respondent has been acquited of the charges under section 5 (2) fo the

Jammu and Kashmir Prevention of Corruption Act, 2006 ( 1949 AD) here in after referred to as the Act.

Prosecution case in brief against the respondent was that a complaint vide EXPWSS was lodged by Shiv Dev Singh PW, hereinafter, referred

to as the complainant with the Vigilance Organisation, Jammu against the respondent and other officials of the Labour Department. According to

the complainant, he had initiated suit for ejectment against one Gopal Sharma his tenant from a shop where the latter was running Embroidery

shop. Further case of the complainant was that he had summoned official from the Labour Department as witnessses in support of his ejectment

case. Before summoning such witnesses complainant claims to have seen the record of the Labour Department, wherein Gopal Sharma was shown

as Sole Proprietor. But w.e.f. 01111979, change was made showing said Gopal Sharma alongwith Chella Ram to be the partners of Gopal

Embroidery Works. Thus, According to complainant, the record was tampered and entry was made by Ram Saroop Sharma, Shop

InspectorRespondent on 011179, showing Gopal Sharma and Chella Ram to be the partners without there being any copy of partnership deed

having been submitted by the tenant, Gopal Sharrna because this entry was made with a view to harm the complainant in connivance with the Shop

Inspector and other official viz. K.K. Sharma, because of such conspiracy of this Shop Inspector with ulterior motive to help the tenant for ilfegeal

gratification, the record was tampered. The Shop Inspector was liable to be punished. This led to registration of case and FIR Exhibit PWDCI

came to be registered. After completion of investigation, respondent was challaned in the court below.

On examination of the matter produced before the court below, it was satisified that there are primafacie grounds to proceed against the

respondent under section 5(2) of the Prevention of Corruption Act and section 465 of the RPC, therefore, respondent was charge sheeted on

22895 to which he pleaded not guilty and claimed trial. After the conclusion of the trial, respondent has been acquitted, hence this appeal.

Mr. Singh, learned Government Advocate submitted that in the face of statement of complainant as well as that of PW Inder Dev Sharma,

Labour Commissioner and PW V.P. Sanmotra, Assistant Labour Commissioner, prosecution has been able to establish that it was the respondent

alone and none else who had fabricated the record in question. While further advancing his argument, Mr. Singh pointed out that when the record

was seen by the complainant, the names of Gopal Sharma and Chella Ram partners have been incorporated. Besides this, Mr. Singh also pointed

out that nonregisteration of the firm wherein the said two persons were partners, with the Sales Tax Department and Registrar of Firms under the

Jammu and Kashmir Partnership Act, supports the case of the prosecution that record has been tampered with by the respondent which by itself is

a substantive offence in addition to the misconduct on the part of the respondent. On this basis, learned Government Advocate urge the court to

allow this appeal and reversing the judgement of the court below there by holding the respondent guilty of the offences and consequently, convict

him.

What seems to be the situation in this case is that the complainant was having landlord tenant dispute with Gopal Sharma when he claims to have

summoned a witness from Labour Department alongwith record. Matter does no rest here. The complainant states that he has seen the record of

the Labour Department, wherein Gopal Sharma was reflected as Sole Proprietor of the business that was being run by him in his tenanted

premises. It is not understood as to how he has examined the record of the department without there being anything to show that he had inspected

the record or he could in law inspect the record. His complaint that he had seen the record which he claims to have been tampered with primafacie

is without any basis. On the otherhand, prosecution has not been fair in this case. During the course of investigating, DForm was taken into custody

by the Investigating Agency for the reasons best known to the prosecution, it has not been proved and rightly so becau?"" *he moment it was put to

any of the witnesses, it would have demolished the entire prosecution case. When reference is made to *he register maintained under the Shops

and Establishments Act and entry No. 501 is seen, it is clear that change was incorporated by the respondent on the basis of DForm. It is not the

case of the prosecution that DForm was not in existence or was not available with the respondent when entry Exp. P1 purports to have been made

by the respondent. Prosecution in the wisdom purposely did not prove D. Form which is on the file of th trial court. In the face of this position, it

cannot be said that when entry vide ExpP1 was made, it was either unauthorised or without any authority under law.

Another ground urged by Mr. Singh was that entries upto serial Nos 504 are not mechanically numbered whereas entries after 505 are

numbered mechanically. State of register which is fortunately before the court and is marked as ""A"" shows that much capital cannot be made by

the prosecution out of it. In this behalf, when a reference is mad eto the entries at Serial Nos.997, 998 as well as 1000, it is clear that those are

also no mechanically num • bered. In case the entries from Serial Nos. 504 onwards were not there from the dates shown against each of such

entries, then the situation would have been different. Possibility of pages wherein entries of these numbers were made mechanically having been

torn cannot be completely ruled out. It may be mentioned here that partly torn and mechanically numbered and this explains the entry against the

same number put mechanically.as such this argument has no force and is hereby rejected.

By not getting their firm registered with the Sales Tax Authority, Gopal Sharma tenant may be liable to be dealt with under the Jammu and

Kashmir General Sales Tax Act. But can for such an omission it be said that partnership is fake or not genuine between the tenant Gopal Sharma

and his partner Chella Ram answer would be against the complainant. In law when two persons join hands to share the profits in business which

they want to carry out in firm name, the contract of partnership is complete. There is positive evidence of PW Thakur Rounaq Singh, Advocate

that when both Gopal Sharma and Chella Ram had come to him for getting the partnership Deed drafted needful was done by him. It has also

come in the statement of this witness that both the persons had informed him that the partnership had come into existence orally between them with

effect from 011179. To the same effect is DForm though not proved on record after having been taken into custody by the Investigating Agency.

That being so, respondent was duty bound to make necessary entry in the record, which he did in the discharge of this official duty. It is not the

case of the complainant that partnership was not at all entered into between Gopal Sharma and Chella Ram. He only complains that after he had

seen the entry of Gopal Sharma being the Sole Proprietor of Gopal Embroidery Works, subsequent entry was made of partnership. As already

observed, this appers to be actuated on his part because he may have realised that ejectment case is not likely to be succeed. Defence of Gopal

Sharma in the ejectment suit would have been another material circumstance. When the ejectment case was at evidence stage, it is presumed that

issues must have been framed in the suit and cat was out of the bag after the written statement had been filed, which would have further explained

the stand of the tenant. Admittedly, written statement has not been produced, what would be the result of nonproduction of such a document,

needs hardly to be mentioned.

Non registration of firm would not make the partnership either nonest or fake in fact. Only consequence of nonregistration would be as

envisaged under Section 69 of the Jammu and Kahsmir Partnership Act, 1996, (1939 AD). In no case, thus non registration of the firm advances

the prosecution case in any manner.

As a consequence of the aforesaid discussion, it is clear that there is no merit in this appeal, which deserves dismissal. It may also be incidentally

mentioned here that this is not the case of either misreading or misappreciation of oral as well as documentary evidence on examination of records

produced before the court below. It also cannot be said that the judgement is perverse on the face of it calling for interference. That being so, the

impugned judgement also does not call for interference. It hardly needs to be clarified that when two views are possible on examination of

evidence, one favourable to the accused needs to be followed. Above all, trial court has properly not only considered but also appreciated the

factual and legal aspects of the case and therefore, on this count also impugned judgment does not call for any interference in this appeal.

As a result of the aforesaid discussion, this appeal is accordingly dismissed. Bail bond if any, furnished by the respondent is discharged.