Ujagar Singh vs State of Punjab

A.N. Jindal, J.—The accused-appellant was allegedly apprehended while receiving a sum of Rs. 2000/-as illegal gratification from the complainant Gurnam Singh (herein referred as ''the complainant'') and was prosecuted. Ultimately vide judgment dated 25.7.1998 passed by the learned Special Judge, Rupnagar, he was convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 2000/-under Section 7.13 (2) of the Prevention of Corruption Act. He was also sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 1000/ under Sections 468/471/477 IPC on each count.

The complainant was the member of Malikpur Cooperative Agricultural Services Society. He was issued a pass book bearing No. 502 of the account No. 107/11. He had taken a loan ofRs.19980/-from the society. But, till the month of March , he had paid a sum of Rs. 25000/-in all to the society against proper receipt. Due to the lack of entries in the pass book, he approached the accused for making necessary entries regarding the return of the loan, however, the accused demanded Rs. 2000/ as illegal gratification for doing the needful. Being reluctant to pay the illegal gratification, the complainant approached Salinderjit Singh and then they both went to the office of Inspector Sukhwinder Singh, Vigilance Bureau, Ropar. A raid was organized. He handed over 20 currency notes of the denomination of Rs. 100/-each. The Investigating Officer recorded his statement Ex.PA and sent the same to the police station. He also recorded numbers of the currency notes in the separate memo. After treating the currency notes with phenolphthalein powder, returned the same to the complainant vide memo Ex.P1. After joining Kuldeep Singh, Sr. Assistant Office of Animal, Husbandry, Ropar, proceeded towards the office of the Cooperative Society. Salinderjit Singh Sarpanch had been nominated to act as a shadow witness.

As planned, the complainant along with Salinderjit Singh went in the room where the accused was sitting and on demand, the complainant handed over a sum of Rs. 2000/- whereupon Saljinderjit Singh gave signal to the police party. As such, the Investigating Officer reached the office and after giving his identity he asked the accused to raise his hands. He arranged a glass of water and put sodium carbonate into it, but its colour did not change. However, when the hands of the accused were got dipped into the water, the colour of the water became pink. The water was put into nip and it was wrapped and sealed by the inspector. On search of the accused, 20 currency notes of the denomination of Rs. 100/-each (Ex.P1 to Ex.P20) were recovered. When compared, the numbers of the currency notes tallied with the memo Ex.P1. When the Investigating Officer got washed the pocket of the shirt of the accused in another glass of water in which sodium carbonate was added, the colour of the water became pink. The said water was also put in another nip and sealed with the seal bearing impression Sections Both the nips of water and the shirt of the accused were taken into possession vide memo Ex.PK. On further search of the accused, a sum of Rs. 966/-were recovered from the pocket of the pant, wrist watch, cloth bag red in colour containing Rs. 25400/-were also taken into possession vide memo Ex.PL. The attendance register Ex.P28, loan register Ex.P29, receipt book and pass book of the complainant were also taken into possession vide memo Ex.PW. Site plan Ex.PU was prepared. The entry and the ruqa were also signed by Inspector and the accused was arrested. Later, after the case was registered, the accused fabricated the cash book after changing the page and introduced a witness to produce the same in the court. Therefore, the offence under Sections 468/471/477 IPC were also added against him. Completion of the investigation was followed by a report u/s 173 Cr.P.C.

On finding a prima facie case, accused was charged u/s 7.13 (2) of the Act and also u/s 468, 471, 477 IPC, to which he pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined as many as 11 witnesses.

When examined u/s 313 Cr.P.C. the accused denied all the allegations and pleaded his false implication. He further explained that on 21.5.1993 he was working as Secretary in the Cooperative Society, however, he did not demand any illegal gratification from the complainant. He has further stated that the accused had not returned the loan amount of Rs. 1443/-which was outstanding against him and warrants of arrest were also issued for the recovery of the said loan. The complainant had given a sum of Rs. 2000/-to him towards the loan amount and he made entry in this regard in the cash book.

In defence, he produced Hardev Singh member of the society (DW1), Bhupinder Singh Clerk of the Office of the Assistant Registrar, Societies (DW2), Amritpal Singh Salesman of the Society (DW3) and Sukhdev Singh Vice President of the Society (DW4).

Ultimately the trial ended in conviction.

Arguments heard. Record perused.

The necessary pre-conditions to prove the offence u/s 7 of the Act are as under:

The accused at the time of offence was or expected to be a public servant.

He accepted or obtained, or agreed to accept, or attempted to obtain from some person a gratification.

That such gratification was not a legal remunerations due to him.

That he accepted the gratification in question as a motive or reward for:

(a) doing or forbearing to do an official act; or

(b) showing or forbearing to show favour or disfavour to some one in exercise of his official function;

(c) rendering or attempting to render any service or dis-service to someone with the Central or State Government or Parliament or the Legislature of any State or with any public servant.

While examining the aforesaid ingredients it comes out that three are the core ingredients to be primarily proved by the prosecution to prove the offence:

the accused should be a public servant;

he had demanded and accepted the bribe; and

it was a motive for doing or omitting to do any favour or dis-favour.

There is no denying a fact that the accused being the member of the Cooperative Society fell in definition of a public servant as defined u/s 2(ix) of the Act.

As regards the demand of Rs. 2000/-on account of illegal gratification, prior to the payment of the same and at the time of trap is duly proved by the complainant Gurnam Singh who states that the accused had demanded a sum of Rs. 2000/-for making the pass book up to date by making entries of the amount which he paid earlier. He has been cross examined at length regarding this factum of demand, but he has withstood the test. His statement stands corroborated by Salinderjit Singh Sarpanch of the village (PW3) who acted as a shadow witness. He has also stated that the complainant had made payment of Rs. 2000/-on demand by the accused. Salinderjit Singh (PW3) had no bias, animus, prejudice or has enmity against the accused for falsely implicating him in the case. He has categorically stated that on being signalled to the police party comprising of Kuldeep Singh, raided the premises of the accused. The recovery of Rs. 2000/-was effected from the pocket of the shirt of the accused. The hands as well as the pocket of the accused were got dipped into the water containing sodium carbonate and the colour of the water became pink. He has also proved the recovery memo Ex.PK in this regard. He has also identified the shirt Ex.P23, currency notes Ex.P1 to Ex.P20 which were taken into possession in his presence. Their testimonies stands corroborated by Kuldip Singh (PW4) an official witness. He was associated by Sukhwinder Singh Inspector Vigilance. He has also deposed on the lines of the aforesaid witnesses. Amra (PW6) is an independent witness working as Salesman in the Society has also not lagged behind to support the payment of illegal gratification of Rs. 2000/-to the accused and recovery of the same in his presence. Jasbir Singh (PW8) Inspector Cooperative Society has proved the appointment of the accused as Secretary of the Society from 2.10.1974 to May, 1993 and has proved the proceeding book Ex.PN, Ex.PO and Ex.PS in this regard. Gurdip Singh, Assistant Registrar (PW5) while completing the chain of evidence has stated that sanction order Ex.PW5/A was passed by the Deputy Registrar, Cooperative Societies for launching prosecution against the accused. Gurdev Singh (PW9) Cashier of the Central Cooperative Bank, Kharar has proved the receipt dated 7.1.1993 (Ex.PD) showing deposit of Rs. 15000/-by Gurnam Singh in the bank. He has also proved the voucher Ex.PG in that regard. During cross examination he has stated that the complainant was defaulter of the bank to the tune of Rs. 6000/-in connection with the loan taken by him. Sukhwinder Singh Inspector while appearing in the witness box as PW-11 has proved the complete investigation. Gian Singh (PW1) Manager of the Cooperative Bank, Kharar has stated that a sum of Rs. 1443/-along with interest was outstanding against the complainant for which warrants were issued against him, but the same had expired on 6.5.1993. Again, these warrants were re-validated up to 30.6.1993 by the Assistant Registrar.

The prime contention raised by the learned Counsel for the appellant in order to challenge the conviction under the aforesaid offence is that no proper sanction was obtained by the prosecution as provided u/s 19 of the Act; secondly, that the evidence does not reveal if money was accepted by the accused as illegal gratification.

Regarding the first contention, it was urged by the learned Counsel that since the accused having employed by the Cooperative Society at the time of his arrest was removable by the society, as such, only society was competent to grant sanction, therefore, the sanction granted by the Deputy Registrar Cooperative Societies was invalid.

There is no denying a fact that the accused was Secretary of the Agricultural Society and as such he was a public servant for the purpose of Section 2 read with Article 21 of the Constitution of India. It has also come on record that the Chairman, Vice Chairman and 2-3 members of the society were the appointing and removing authority of the Secretary of the Society. It has also come in evidence that the society deliberately withheld the sanction for the prosecution of the accused with a view to shield him. This fact also cannot be disputed that as the society did not suspend the accused, the Assistant Registrar, vide order dated 21.9.1993 (Ex.D4) suspended the working committee of the society. When the cooperative society had refused to accord sanction without any sufficient cause, then the Assistant Registrar being the higher authority and competent to sanction the prosecution of the accused accorded the sanction vide order Ex.PW5/A. The trial court while relying upon the judgment passed in case State of Tamil Nadu v. T. Thulasingam and Ors. 1995 (3) R Cri R 179, wherein it was observed by the Apex Court that sanction for prosecution as granted by the authority superior to the competent authority is perfectly valid. It was the case of the Employee of the Municipal Corporation whose sanction was accorded by the Special Officer appointed on the supersession of the Municipal Corporation. The sanction in the instant case was granted only when the society was avoiding its duties. It even refused to suspend him.

While taking the case from another angle, it has come on record that on suspension of the society by the Assistant Registrar, the accused was ceased to be the member of the society and the challan was presented thereafter. As such, no sanction as desired by Section 19 of the Act was required. The question with regard to requirement of sanction at the first instance arose before the Apex Court in case R.S. Nayak Vs. A.R. Antulay, wherein it was observed as under:

Now if the public servant holds two offices and he is accused of having abused one and from which he is removed but continues to hold the other which is neither alleged to have been used (sic misused) nor abused, is a sanction of the authority competent to remove him from the office which is neither alleged or shown to have been abused or misused necessary? The submission is that if the harassment of the public servant by a frivolous prosecution and criminal waste of his time in law courts keeping him away from discharging public duty, are the objects underlying Section 6, the same would be defeated if it is held that the sanction of the latter authority is not necessary. The submission does not commend to us. We fail to see how the competent authority entitled to remove the public servant from an office which is neither alleged to have been used (sic misused) or abused would be able to decide whether the prosecution is frivolous or tendentious. An illustration was posed to the learned Counsel that a minister who is indisputably a public servant greased his palms by abusing his office as minister, and then ceased to hold the office before the court called upon to take cognizance of the offence against him and, therefore, sanction as contemplated by Section 6 would not be necessary; but if after committing the offence and before the date of taking of cognizance of the offence, he was elected as a Municipal President in which capacity he was a public servant under the relevant municipal law, and was holding that office on the date on which court proceeded to take cognizance of the offence committed by him as a minister, would a sanction be necessary and that too of that authority competent to remove him from the office of Municipal President. The answer was in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Some one interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. One can legitimately envisages a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant u/s 21 IPC and even if he has abused only one office for which either there is valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed by such public servant, while abusing one office which he may have ceased to hold. Such an interpretation is contrary to all canons of construction and leads to an absurd end product which of necessity must be avoided. Legislation must at all costs be interpreted in such a way that it would not operate as rogue''s charter. (See W.Devis & Sons Ltd. v. Atkins 1977 Imperial Court Report 662 : (1977) 3 All ER 40.)

This judgment was followed by the Apex Court in case Balakrishnan Ravi Menon v. Union of India 2007 (3) RCR (Criminal) 956, wherein it was observed as under:

Clause (a) and (b) of Sub-section (1) specifically provide that in case of a person who is employed and is not removable from his office by the Central Government or the State Government, as the case may be, sanction to prosecute is required to be obtained either from the Central Government or the State Government. The emphasis is on the words who is employed in connection with the affairs of the Union or the State Government. If he is not employed then Section 19 nowhere provides for obtaining such sanction. Further, under Sub-section (2), the question of obtaining sanction is relatable to the time of holding the office when the offence was alleged to have been committed. In case where the person is not holding the said office as he might have retired, superannuated, be discharged or dismissed then the question of removing would not arise. Admittedly, when the alleged offence was committed, the petitioner was appointed by the Central Government. He demitted his office after completion of five years'' tenure. Therefore, at the relevant time when the charge sheet was filed, the petitioner was not holding the office of the Chairman of Goa Shipyard Ltd. Hence, there is no question of obtaining any previous sanction of the Central Government.

Similar view was taken in case Parkash Singh Badal and Anr. v. State of Punjab and Ors. 2007 (1) R.C.R. (Crl.) 1.

Thus, in view of the latest position as laid down by the law while approving the observations of A.R. Antulay''s case (supra), this Court is of the considered opinion that no sanction was required when the accused had ceased to be the employee of the society.

As regards the question, whether the money received by the accused was the money against the loan or of illegal gratification?, it is observed that there is ample and overwhelming evidence to prove that the accused had received the money on account of illegal gratification. The motive on his part to demand and accept the bribe of Rs. 2000/-stand fully established. The evidence has come on record that the complainant had received a sum of Rs. 19980/-and a loan of Rs. 1443/-along with interest was outstanding against him, whereas, after making the payment of Rs. 25,000/-in all up to the month of March, 1993 the recovery warrant to the extent of Rs. 26440/-was issued by the Assistant Registrar against him on 14.12.1992 and the said warrant was still in operation and was extended up to 30.6.1993. All this goes to show that since the pass book issued to the complainant was not having entries with regard to payment of loan, the warrants were issued against him, as such, the complainant was anxious on account of fear to get the entries made in the pass book from the accused who was the person competent to make the same and if the pass book was made up to date. He could avoid his arrest in the execution of the warrants only on proof of the payment of loan amount. It has categorically been stated by the complainant in his statement that he approached the accused for making the entries in his passbook, but the latter demanded Rs. 2000/ as illegal gratification. Had there been no demand of Rs. 2000/-, on the part of the accused, then there was no occasion for him to disclose the same to Salinderjit Singh Sarpanch of the village and then to approach the vigilance bureau. No enmity of the complainant against the accused has been alleged or proved for implicating him for no reasons. Even the accused has accepted this fact in his statement u/s 313 Cr.P.C. that the money was handed over to him, but he had taken the same against the loan. It was only Rs. 1443/-which the accused could recover, therefore, the question of paying Rs. 2000/-did not arise. The passbook was also recovered from the accused. Had this amount been against the loan, then he would have made entry in this passbook qua receipt of the said sum. As such, the defence plea set up by the accused that the money was paid by the complainant to him as loan instalment is of no consequence and the net result would be that the accused had demanded illegal gratification for making the entries with regard to deposit of the amount in the passbook.

The plea set up by the accused that he had made the entry in the cash book Ex.P1 regarding receipt of payment of Rs. 2000/-is nothing but a fabrication in order to defend himself as it appears that he had forged this entry subsequently in order to create evidence in his own favour and in order to save his own skin. Inspector Sukhwinder Singh (PW11) has categorically testified that at the time when he had trapped the accused and recovered of Rs. 2000/-from him, such entry was not existing in the cash book. He had also initialled page 19 of the cash book Ex.P31. Thus, the production of the cash book at a later stage with the entry with regard to deposit of Rs. 2000/-certainly is proved to be false and fabricated by the accused. Inspector Sukhwinder Singh (PW11) who had seen the relevant page of the cash book at that time deposes that there was no such entry at that time. The fabrication obviously could be made by the accused in the said cash book as the same remained with the accused even after 21.5.1993. No entry with regard to payment of Rs. 2000/- has been made by the accused in the passbook which was taken into possession on the day of occurrence. The society, despite the orders made by the Assistant Registrar to suspend him did not suspend the accused and he remained in possession of the documents as well as the cash book. The charge of the accounts of the society was handed over to Amra (PW6) on 6.9.1993 and he has categorically testified that he was not handed over the cash book Ex.P31 till 18.9.1993 and he received this cash book only after 30.9.1993. He has further stated that the accused produced the cash book vide recovery memo Ex.PW6/A only after 30.9.1993. Similarly, if the facts with regard to making of the entry in the passbook in the name of Gurnam Singh are examined in depth, Amra (PW6) has explained that these entries were made by him after seeing khata and were signed by the accused on the asking of the police. The amount was taken by the accused from Gurnam Singh complainant for making entries in his passbook regarding repayment of Rs. 25000/- out of the loan amount by him to the society.

The accused is not fair in his conduct. Though the Investigating Officer has failed in his duties to take the register in his possession at the time of raid or during investigation, yet he has categorically stated that he had signed the relevant page of the register but the accused appears to have fabricated the entry in the register in order to show that the amount of Rs. 2000/-was received by him against the loan and on account of the illegal gratification. The accused not only made the entry on the signed page of the register but he appears to have changed that page of the cash book before it was produced before the Investigating Officer by Amra (PW6). The fact that the cash book did not contain that page which was initialled by Inspector Sukhwinder Singh (PW11) when produced in the court, later on also goes a long way to support the prosecution case that it has been replaced and new page has been substituted in its place by the accused by making an entry of Rs. 2000/-in it. Had the money been received by the accused towards the loan amount, then firstly he would have issued a receipt to Gurnam Singh, but admittedly, no such receipt was issued to him.

The accused failed to explain as to why receipt was not issued. Further entry regarding receipt of this money had also not been made by him in any other account book of the society, or the passbook of the complainant which was recovered from the accused, therefore, his plea that the amount of Rs. 2000/-recovered from him by the Vigilance Inspector on the day of raid i.e. on 21.5.1993 was taken towards the outstanding loan amount from Gurnam Singh is a blatant lie. In fact, he forged the entry in this regard in the cash book in order to create evidence for which the trial court has convicted him for the offence under Sections 468/471/477 IPC.

No other argument has been raised.

Now coming to the quantum of sentence, keeping in view the nature of allegations, gravity of offence and the fact that the accused not only accepted the illegal gratification but also tampered the records, changed the pages of the cash book in order to favour his own cause, as such, he does not deserve any leniency on the quantum of sentence.

Resultantly, finding no merit in the appeal, the same is dismissed.