The State of Punjab vs Sarup Singh

S.S. Dewan, J.—The respondent Sarup Singh, who was patwari, was brought to trial for the offences u/s 5(2) of the prevention of Corruption Act (hereinafter referred to as the Act) and u/s 161, Indian Penal Code. The Special Judge, Patiala, acquitted the respondent of the charges by his order dated April 23, 1976 which is under challenge in this Court.

It is alleged that Ujaggar Singh complainant (P.W. 4) was to sell his land situate in village Becharg Rasoolpur to Teja Singh for Rs. 6,000/- as the same was under mortgage and for that purpose he wanted to have a copy of jamabandi for the land. He along with Teja Singh contacted Sarup Singh Patwari (accused in the case) for having a copy of jamabandi and the respondent demanded bribe of Rs. 25/- for supplying him the copy. The complainant contacted the respondent a few days later and he again demanded the bribe. The complainant made a false promise to pay the amount to the respondent on the next day i.e. 8th July, 1975. The complainant accompanied by Teja Singh approached Shri Bhajan Singh, Vigilance Inspector, Patiala, and informed him that the respondent was demanding a bribe of Rs. 25/- from him. He recorded his statement Exhibit P.A. and sent the same to the Police Station, Bassi Pathanan for registration of the case against the respondent He drew up a memo Exhibit P.D. pertaining to the handing over of two currency notes of Rs. 10/ each and one currency note of Rs 5/- (Exhibits P. 1 to P. 3) after applying phenolphthalein powder to Ujaggar Singh giving the numbers and the particulars of the said notes in the memo. The Vigilance Inspector joined Jawala Singh from village Bahadurgarh. According to the trap devised, it was settled that the three currency notes Exhibits P. 1 to P. 3 would be delivered by Ujaggar Singh to the respondent. Teja Singh would accompany him as a shadow witness Teja Singh was to give a signal to the police party when the treated currency notes were passed on to the respondent.

Ujaggar Singh accompanied by Teja Singh contacted the respondent to have the copy of the jamabandi for which the latter demanded bribe. The complainant threw the three currency notes of Rs. 25/- on the cot from where the respondent picked them up and put them in the right side outer pocket of his shirt. Teja Singh slipped away and gave the prearranged signal. The Vigilance Inspector accompanied by Jawala Singh rushed to the spot and offered his search and thereafter the Inspector searched the person of the respondent and recoverd currency notes worth Rs. 36/- and a change of Rs. 1.65 paise which included the tainted money from the right side outer pocket of the shin Exhibit P. 5. The hands and the shirt were dipped in the solution of sodium carbonate and the same turned pink. The necessary memos were prepared in that respect. The register of the jamabandi and the copy of the jamabandi Exhibit P.G. prepared by the respondent and also the roznamcha were taken into possession. The Inspector obtained sanction for the prosecution of the respondent. After the completion of the investigation, the respondent was challaned. In his statement u/s 813 of the Code of Criminal Procedure, the respondent admitted that he was working as a Patwari incharge of Talania Circle but denied the other allegations. He pleaded that on the alleged day of occurrence, he was present In the Patwarkhana where Dalip Sain and Hari Singh were also present and that at about 1 P.M., Ujaggar Singh came to him for getting his land demarcated for which the respondent replied that the same could be done only through an application made to the Tehsildar. There was altercation between him (respondent) and Ujaggar Singh and in the meanwhile Vigilance Inspector Bhajan Singh came to the spot and took him to the police station The respondent examined no witness in defence but tendered certified copies of judgments wherein some adverse observations were made against the Vigilance Inspector Bhajan Singh.

The trial Court on the basis of the material placed before it returned a judgment of acquittal and hence this appeal by the State.

It is well settled law that the powers of the High Court in an appeal against acquittal are not different from the powers of the same Court in hearing an appeal against a conviction The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on the evidence provided it pays due regard to the fact that the matter had been before the trial Court and the trial Judge had the chance and opportunity of seeing the witnesses deposing to the facts Further the High Court in examining the judgment of the trial Judge must pay due regard to all the reasons given by the trial Judge for disbelieving a particular witness and must attempt to dispel these reasons effectively before taking a contrary view of the matter. It may also be pointed out that the accused starts with a presumption of Innocence when he is put up for trial and his acquittal in no sence weakens that presumption and this presumption must also receive adequate consideration from the High Court. Where the trial Court has found the accused not guilty unless the conclusions reached by it are palpably wrong or based on erroneous view of law or that its decision is likely to result in grave injustice, the High Court should be reluctant to interfere with its conclusions. If two reasonable conclusions can be reached on the basis of evidence on record, then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal, vide Laxman Kalu Nikalje Vs. The State of Maharashtra, and Rajendra Rai and Others Vs. The State of Bihar and Another, . According to the decisions of the Supreme Court referred to above, the appellant must prove that the decision of the trial Court on the points raised in the appeal is not correct.

The points which are argued and which arise for determination are:

(1) Whether the charges u/s 161, Indian Penal Code and u/s 5(2) of the Prevention of Corruption Act were brought home against the respondent and whether he is guilty of the same; and

(ii) whether there was a valid sanction for the prosecution of the respondent.

As rightly pointed out by the learned trial Judge that except the interested testimony of Ujaggar Singh and Teja Singh there is no other evidence to show that the respondent demanded bribe from Ujaggar Singh. The learned Special Judge points out that the Vigilance Inspector Bhajan Singh being a partisan witness, his evidence cannot be relied upon without independent corroboration. The Learned Special Judge discussed the evidence of the aforesaid witnesses to scrutinise whether their evidence was believable and pointed out a number of discrepancies in their evidence. Ujaggar Singh P.W. stated that the Vigilance Inspector before searching the person of the respondent offered himself for search on which the witness and Teja Singh searched the person of the Inspector but nothing was recovered. Teja Singh did not state so in his examination-in-chief. Vigilance Inspector Bhajan Singh (P.W. 8) simply stated that after satisfying the witness about his person, he searched the person of the accused. According to Ujaggar Singh and Vigilance Inspector Bhajan Singh, the shirt Exhibit P. 5 was still on the person of the respondent when his personal search was carried out and the tainted money was recovered from his shirt whereas Teja Singh stated that the shirt of the respondent was got removed from his person and then he was searched and the tainted money was recovered. Ujaggar Singh stated that after the recovery of the currency notes Exhibits P. 1 to P. 3, their serial numbers were compared with those given in the memo and were also shown to the respondent while Teja Singh did not state that the respondent was also shown the serial numbers of the three recovered currency notes being the same as those noted in the memo. These discrepancies are quite material which belie and improbablie their evidence.

Besides the aforesaid discrepancies pointed out by the trial Judge, there are other circumstances in the evidence of the witnesses which show that they were only too enthusiastic to implicate the respondent Ujaggar Singh complainant (P.W. 4) stated in his examination in chief that when he contacted the respondent for the first time for having copy of the jamabandi, the latter got his signatures in the register of fees at the point marked ''A'' and so is the statement of Teja Singh (P.W. 5) who claims to have accompanied Ujaggar Singh to the respondent. Vigilance Inspector Bhajan Singh admitted in his cross-examination that there was an entry dated 21st June, 1975 in the register of fees about the copy of the jamabandi (Exhibit P.G.). In his cross-examination, Ujaggar Singh stated that the respondent got his signatures not only in the register of fees but also in the roznamcha. But in his statement to the police he made mention only of the signatures in the register of fees. The case of the respondent is that he issued copy of jamabandi (Exhibit P.G.) to Ujaggar Singh on 21st June, 1975 and this assertion of the respondent gets confirmed from the entry in the roznamcha at serial No. 457. The fees charged from Ujaggar Singh also and mention in the said document. The next entry No. 57 relates to 22nd June, 1975 for supplying of copy of the jamabandi to one. Amar Singh son of Hira Singh and this entry also bears the signatures of Amar Singh in column No. 14. Ujaggar Singh has no doubt denied having paid any fees to the respondent for the issue of copy of jamabandi when he contacted him for the first time but he (Ujaggar Singh) is falsified from the entry made in the register of fees regarding payment of fee of Rs. 1.20 paise on 21st June, 1975 and this circumstance is indicative of the fact that the copy of the jamabandi had been issued to Ujaggar Singh on the same day. Normally the applicant would sign the entry in the register of fees only when he receives the copy of the revenue record for which the application has been made, it is difficult to believe that the entry was made and the same was signed by Ujaggar Singh without any fees having been paid and without the copy of jamabandi having been issued to him. The entry in the daily diary register at serial No. 457 fully supports the case of the respondent. It is not the case of the prosecution that the respondent manipulated entries in the register of fees in the roznamcha. In this view of the matter, possibility cannot be ruled out that Ujaggar Singh obtained copy of jamabandi on 21st June, 1975 itself and the same was later on used as a tool for implicating the respondent in this case. Ujaggar Singh stated that he wanted to sell his land to Teja Singh for Rs. 6,000/-. In his cross- examination he admitted that no writing was made about the agreement of sale and no advance money was paid to him though he admitted having received he entire consideration of Rs. 6,000/- a day or two after his meeting the respondent for having copy of the jamabandi. He further admitted that no writing was made even for the payment of Rs. 6,000/- and even uptil the day he made the settlement In the Court on 1st March, 1976, no sale deed was got executed or registered in favour of Teja Singh although the possession of the land bad been given by him to Teja Singh. Teja Singh (P.W. 5) stated in his cross examination that no money was paid by him to Ujaggar Singh in advance and no writing was made regarding the same. He also admitted having paid Rs. 3,000/- against the mortgage amount and the remaining amount of Rs. 3,000/- was paid to Ujaggar Singh but according to the Utter, the sale consideration was paid to him about a day or two before his meeting the respondent for the first time for having copy of the jamabandi. It is manifest from the evidence of these witnesses that they were men of confidence of each other and they wanted the respondent to make entries in the revenue record in accordance with the alleged sale for which no sale deed had been executed nor was got registered and failing in that attempt they tried to get the respondent implicated in the case

The learned counsel for the appellant contended that the fact that Exhibits P. 1 to P. 3 were seized from the pocket of the shirt worn by the respondent raises a presumption u/s 4(1) of the Prevention of Corruption Act and that the burden lay upon the respondent to prove that the money was not bribe money. We find no merit in this contention. In the present case, there is no proof that the respondent accepted Exhibits P. 1 to P. 3 as illegal gratification but the respondent''s contention that he supplied the copy of the jamabandi to the complainant by charging the requisite fee of Rs. 1.20 paise on 21st June, 1975 is more probable than the case of the prosecution. So no such presumption can be raised but even if such a presumption arises. It is sufficiently rebutted. The rebuttal need not be by direct evidence. If there are circumstances which show that the prosecution version is not correct, then the presumption is sufficiently rebutted vide V.D. Jhangan Vs. State of Uttar Pradesh, wherein it was held that the burden of proof lying upon the accused u/s 4(1) of the Prevention of Corruption Act will be discharged if he established his case by a preponderance of probability as is done by a party in civil proceedings and that it is not necessary that he should establish a ease by the test of proof beyond reasonable doubt.

Thus the case of prosecution is highly doubtful and was nightly rejected by the trial Court We find point (1) in the negative.

The evidence of Sukhinder Singh (P.W. 2) is that the respondent was appointed as a Patwari Re-settlement on 20th October, 1922 and there was no indication in his service book as to who made the initial appointment. The witness maintained that the respondent was the Patwari incharge of Talania Circle on 8th July, 1975, the day of the occurrence and that Shri D.S. Chaudhary, the then Deputy Commissioner, Patiala in the capacity of a Collector accorded sanction Exhibit P.B. to prosecute the respondent. Shanti Parkash (P.W. 7) stated that the respondent was initially appointed as a Patwari by the Settlement Commissioner and that the respondent could be dismissed as a Revenue Patwari by the Collector, Patiala. The trial Judge held "that since the prosecution failed to bring on record the order under which the respondent was absorbed in the revenue Department, it was quite possible that this could have been done under the orders of the Government and that when the respondent had initially been appointed by the Settlement Commissioner, the authority competent to remove him from his office would by virtue of Article 31st of the Constitution be not one subordinate to the Settlement Commissioner. Consequently the sanction for the prosecution as required u/s 6 of the Act must be by an officer equivalent or higher in rank to the Settlement Commissioner and not by an authority subordinate to him. Since there is nothing to indicate that the Collector was an authority not subordinate to the Settlement Commissioner, the sanction for the prosecution of the respondent cannot be considered to be valid."

Section 6(i)(e) of the Act lays down that no Court shall take cognizance of an offence punishable u/s 161, Indian Penal Code or sub-section (2) of section 5 of the Act alleging to have been committed by a public servant except with the previous sanction of the authority competent to remove him from the office. The words "to remove him from office" are significant and would clearly show that the authority contemplated therein is the one competent to remove that public servant from his office and not any public servant Holding the office held by the accused person. It is, however, provided in sub-section (2) of section 6 that where for any reason whatsoever any doubt arises as to whose previous sanction as required in sub section (1) should be obtained, the sanction shall be given by that authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. Section 6 of the Act cannot override the provisions of the Constitution and consequently sub section (2) thereof can be made applicable in such cases where it cannot be ascertained with reasonable certainty as to who had actually appointed the accused person or where by change in rules the authority who had actually appointed him was no longer competent to remove him from the office It is borne out from the evidence of Sukhinder Singh and Shanti Parkash P.Ws. that the respondent was originally appointed as Patwari Re-settlement in the office of the Settlement Commissioner on 20th October 1952. After the respondent had worked for about 23 years under the Settlement Commissioner he was absorbed as a Revenue Patwari in the office of the Collector, Patiala with effect from 8th July, 1975. The prosecution has not brought on record the order under which the respondent was absorbed in the Revenue Department. In these circumstances, the posting or the transfer of respondent will not determine nor will it be a safe guide to determine by whom he had actually been appointed to the post of a Revenue Patwari. In the case of the respondent, the Settlement Commissioner would be the authority who made his appointment but after his absorption in the Revenue Department he would be deemed to have been appointed by the person competent to make such an appointment. In our opinion, therefore, the authority competent to appoint him or who had actually appointed him will have to be determined from the date of his absorption and from the orders whereunder he was absorbed in the Revenue Department. Thus any order passed prior to 8th July, 1975 can be disregarded in determining the authority who had in fact appointed the respondent. Indisputably, therefore, the Collector would be the disciplinary authority with power to remove him from service when the offence was alleged to have been committed. Therefore, the Collector would be competent to accord sanction as envisaged by section 6(1)(c) of the Act. Sanction in this ease having been granted by the Codec or. It was valid. We find point (ii) in the affirmative.

In view of our finding that the prosecution did not make out its case against the respondent, the appeal fails and is accordingly dismissed.