Sukhdev Singh vs State of Punjab

M. Jeyapaul, J.—Accused-appellant Sukhdev Singh was convicted u/s 7 of the Prevention of Corruption Act and sentenced to undergo 1 year R.I. and to pay a fine of Rs. 1000/- and in default, to undergo further period of 30 days. He was also convicted for the offence u/s 13(2) of the Prevention of Corruption Act and sentenced to undergo 2 years'' R.I. and to pay a fine of Rs. 5000/- and in default, to undergo further period of 30 days. The accused-appellant has challenged the above verdict of conviction and sentence passed by the trial Court.

The brief case of the prosecution is that PW3 Sukhdev Singh approached PW9 SP Darshan Singh attached to the office of Vigilance Bureau, Chandigarh and suffered a statement to the effect that on 15.6.2000, his mother Gurmej Kaur entered into an agreement with one Rud Singh to purchase a property for a total sale consideration of Rs. 9,98,000/- and paid earnest money of Rs. 5,73,000/- in the presence of witnesses. Rud Singh failed to comply with the terms and conditions of the agreement. A civil suit was filed wherein an order of status quo was granted. Rud Singh sold away the property to one Gian Singh. Rud Singh handed over possession of the subject land to Gian Singh with the assistance of the accused Sukhdev Singh. The accused advised the complainant to submit an application to DIG/SSP and get his application marked to him. In that eventuality, the accused promised him that he would restore possession to him. The accused demanded a sum of Rs. 50,000/- as bribe for doing such a work. Thereafter, the deal was clinched for a sum of Rs. 20,000/-. A sum of Rs. 30,000/- was also demanded for taking action against Rud Singh and others. The complainant did not like to pay illegal gratification. He appeared before PW9 SP Darshan Singh and handed over a sum of Rs. 20,000/- after giving details of the episode. A formal FIR was registered. PW12 Inspector Surjit Singh was directed to act as a shadow witness. Phenolphthalein test demonstration was conducted in the office of PW9. PW1 Devinder Singh was also associated for the purpose of raid from Moga bypass road. PW3 handed over tainted money on demand made by accused in the presence of PW12, Inspector Surjit Singh. A pre-arranged signal was given to the police party headed by PW9 which recovered a sum of Rs. 20,000/- wrapped in a towel on the table in the drawing room of the accused. A sum of Rs. 3,10,700/- besides two mobile phones, 78 bottles of liquor, 50 gms. of opium and 4.400 kgs. of poppy husk was also recovered from the accused during house search. Sodium carbonate solution was prepared. The accused was directed to wash his fingers in the solution whereupon the colour of the solution turned light pink. As regards the recovery of the contraband, two separate cases under the NDPS Act as well as Punjab Excise Act were registered against the accused.

PW9 having completed the investigation laid final report as against the accused.

As many as 15 witnesses were examined on the side of the prosecution.

The accused came out with a plea u/s 313 Cr.P.C. that a false case was booked as against him, as an FIR was registered as against Kuldeep Singh Bhullar son of Mehal Singh Bhullar, DGP, Punjab. On the side of defence, three witnesses were examined.

The FIR Ex. D2 registered as against Kuldeep Singh Bhullar, son of Mehal Singh Bhullar, DGP, Punjab was exhibited through DW2 HC Balwant Singh. DW1 HC Jai Pal Singh spoke about the registration of the case as against said Kuldeep Singh Bhullar at the time when accused Sukhdev Singh was the DSP having jurisdiction over the police station which registered the case.

DW3 ASI Baljinder Singh was the Guard Incharge at the residence of accused on 27.12.2004. He spoke about the fact that there was no bribe given by accused nor was any recovery made by the police.

The trial Court having adverted to the evidence on record returned a verdict of conviction as against the accused.

Heard the submissions made on either side.

PW3 Sukhdev Singh is the complainant in this case. He has deposed that accused never demanded any illegal gratification from him. In other words, PW3 Sukhdev Singh completely turned hostile to the case of the prosecution. When the complainant turns hostile in a case under the Prevention of Corruption Act, the burden to establish the demand and acceptance of bribe lies very heavily on the prosecution.

In the absence of acceptable evidence from PW3, the complainant in this case, the Court has to necessarily fall upon the testimony of the shadow witness. PW9 SP Darshan Singh, Investigating Official chose to nominate PW12 Inspector Surjit Singh who was the Inspector, Vigilance as shadow witness. It is the admission of PW9 SP Darshan Singh that PW12 was serving under his command.

It is quite understandable that PW9 had to associate one of his police officers in the team formed by him for the purpose of laying trap, if at all there was no independent witness who could be ably associated by the investigating officer. It is the admitted case of the prosecution that one Rajinder Singh in fact accompanied the complainant, when the complainant proceeded to the office of PW9 for giving complaint. In the memo Ex. PW3/D, in fact, Rajinder Singh was originally nominated as shadow witness. For reasons best known, the word ''shadow'' has been struck-off conveniently and PW12 Surjit Singh, Inspector, Vigilance who was working under PW9 was nominated as shadow witness. The very association of a police officer serving under the investigating official for the purpose shadowing the complainant, when an independent witness was very much available, throws doubt on the case of the prosecution.

It is the admitted version of PW12 Surjit Singh, Inspector, Vigilance that a case under the Prevention of Corruption Act was registered as against him after laying a trap, but the case is still pending disposal. It is his further admission that though cancellation report was submitted in the corruption case launched as against him, the trial Court chose not to accept the cancellation report and proceeded with the trial of the case. The pendency of the said trap case launched previously as against PW12 has not been highlighted either by the prosecution or by the defence. But the fact remains that a trap case under Prevention of Corruption Act was pending as against PW12. Pendency of trap case against PW12 shakes the very credibility of PW12, apart from the fact that he was Inspector serving under PW9, the investigating official in this case.

In view of the above, I find it difficult to rely upon the evidence of PW12 to hold that the case of the prosecution, even in the absence of acceptable evidence from PW3, stands established.

Recovery was not effected from the person of the accused. It is an admitted case of the prosecution that recovery of a sum of Rs. 20,000/- was effected from the table lying in the drawing room of the accused.

The question is whether mere recovery of currency notes would give rise to the presumption that there was a demand and acceptance of bribe by the accused. This Court has held in Anand Parkash and Another Vs. State of Haryana, that mere recovery of the amount from the accused is not at all sufficient for convicting the accused, more especially when substantive evidence was not available.

There cannot also be any presumption u/s 20 of the Prevention of Corruption Act, 1988 when the acceptance of the amount tendered was not established by the prosecution. The Hon''ble Supreme Court in Banshi Lal Yadav Vs. State of Bihar, has held as follows:-

Before presumption can be raised; the burden is on the prosecution to prove that the accused has accepted or obtained, or has agreed to accept or attempted to obtain, for himself any gratification other than legal remuneration etc. If the accused when examined under S. 313 of the Code of Criminal Procedure with reference to the circumstances appearing against him in evidence, only stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of Section 4(1) that accused accepted or obtained or has agreed to accept or attempted to obtain, any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or agreeing, to accept or attempting to obtain is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. Therefore, the statement of the accused by itself in the facts and circumstances of this case and especially the language used cannot provide the necessary factual basis or fact situation which must exist before presumption can be raised.

Though the prosecution could establish through the evidence of PW1 Devinder Singh, an official from the Agriculture Department, the recovery of a sum of Rs. 20,000/- from the house of the accused, the prosecution miserably failed to establish the demand and acceptance of bribe by leading credible and trustworthy evidence.

The evidence of DW1 and DW2 would establish that a case was registered as against the son of the then DGP, Punjab in Police Station Zira which fell under the jurisdiction of the accused when he was serving as DSP. Not only the present trap case was registered as against the accused-appellant, two other cases under the NDPS Act and Punjab Excise Act were also registered on the basis of the house search allegedly undertaken by the police team headed by PW9.

By exhibiting the judgment Ex. D1 dated 2.1.2009, the defence could establish that the trial Court doubted the very version of the prosecution that contraband was recovered from the house of the accused in the house search. Ultimately, the cases under the NDPS Act as well as under the Punjab Excise Act launched as against the appellant ended in acquittal. No appeal was preferred and ultimately, the said judgment reached finality.

For all these reasons, I find that the prosecution has miserably failed to establish beyond reasonable doubt the demand and acceptance of bribe by the accused-appellant. The trial Court has misdirected itself and come to a wrong conclusion.

Therefore, the judgment of conviction and sentence passed by the trial Court stands reversed. The accused is acquitted of the charge u/s 7 and 13(2) of the Prevention of Corruption Act. The bail bond executed by appellant Sukhdev Singh shall stand discharged.

Consequently, the appeal is allowed.