Vijay Kumar vs State of Punjab

A.N. Jindal, J.—Accused-appellant Vijay Kumar (herein referred as ''the appellant'') was allegedly trapped while receiving a sum of Rs. 6,000/- on account of illegal gratification from the complainant-Gurdip Singh (herein referred as ''the complainant'') and was prosecuted for the offence punishable u/s 7 read with Section 13(2) of the Prevention of Corruption Act, 1988 (herein referred as ''the Act'') and sentenced to undergo rigorous imprisonment for one year u/s 7 of the Act and rigorous imprisonment for two years and to pay fine of Rs. 1,000/- u/s 13(2) of the Act.

The complainant is running a business of property dealing in the name and style of M/s Deep Friends Estate Agent bearing property No. 2185, Booth No. 5, Phase VII, Focal Point, Dhandari Kalan, Ludhiana for which he had received a house tax bill worth Rs. 14580/- payable to the Municipal Corporation, Ludhiana. However, he had sought re-assessment of the municipal tax by filing objection petition. Narinder Pal Singh co-accused (since acquitted in the case) was the Building Inspector (house Tax Inspector) and the accused was the Senior Clerk (Tax Collector). They had come to re-survey the property in the month of February and informed the complainant that the bill regarding the amount of house tax issued to him was in excess and the same could be reduced to Rs. 4000/- per annum in future provided he pays a sum of Rs. 6000/- on account of illegal gratification, but, the complainant did not agree to pay the same. He again received the bill for the same property for the year 1996-97. On 18.3.1997, at about 9.30 a.m. both Narinder Pal Singh and Vijay Kumar came to his shop and told that if he does not pay a sum of Rs. 6000/- by the evening, then he would have to pay full amount of Rs. 14580/-. Since the complainant was reluctant to pay the said amount, therefore, he contacted the Vigilance Bureau Ludhiana. Babu Singh DSP after recording the statement Ex.PA received a sum of Rs. 6000/- (12 notes of the denomination of Rs. 500/- each) from the complainant and treated them with phenolphthalein powder and noted the numbers of the currency notes in the memo Ex.PB. The said treated currency notes were handed over to the complainant after making his thorough search and assuring himself that he had no other currency notes with him and directed him to pay the same to the accused. Raminder Kumar PW was appointed as a shadow witness. He also gave demonstration to the complainant with regard to colouring of the currency notes as well as dipping of the same into the solution. Thereafter, he sent ruqa to the police station on the basis of which FIR Ex.PA/3 was recorded by Inspector Visakha Singh.

Before setting for the office of the complainant, he got washed the hands of the members of the police party as well as the witnesses. On the way, he joined Amar Singh Junior Engineer, P.S.E.B. Unit No. 1 as a recovery witness. After reaching the office of the accused, the complainant as well as the shadow witnesses were dropped and they stood at some distance at different places. After making payment on demand by the accused, Raminder Kumar signalled the police party. At this, DSP Babu Singh along with other police officers arrived and asked Narinder Pal Singh that he had received a sum of Rs. 6000/- as bribe money from the complainant. On search of the accused, Rs. 6000/- were recovered from the right pocket of his pant. Number of the 12 currency notes of the denomination of Rs. 500/- each so recovered from the accused, on comparison were found tallied with the memo Ex.PB. The said amount was taken into possession in the presence of Raminder Kumar, Amar Singh and the complainant. After completing all the formalities, recording statements of the witnesses and on completion of the investigation challan against the accused was presented in the court.

The accused was charged u/s 7 read with Section 13(2) of the Act, to which he pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined Gurdip Singh complainant (PW1), Raminder Kumar (PW2), Kulwinder Singh (PW3), Amar Singh J.E. (PW4), Tehal Singh Superintendent (PW5), Pawan Kumar Clerk M.C. Ludhiana (PW6), Manjit Singh Superintendent M.C. Ludhiana (PW7), C. Manjit Singh (PW8), C. Sajjan Singh (PW9), Babu Singh DSP (PW10), MHC Gurbhej Singh (PW11), Harchand Singh Sr. Assistant (PW12), Charan Singh Clerk (PW13), C. Harbans Singh (PW14), DSP (Retd.) Pinder Singh (PW15) and after tendering into evidence report of the Forensic Science Laboratory, Punjab, Chandigarh (Ex.PZ) closed the prosecution evidence.

When examined u/s 313 Cr.P.C. both the accused denied all the incriminating circumstances appearing against them and pleaded their false implication. Vijay Kumar further explained as under:

I am innocent. Neither I demanded nor accepted any bribe money from Gurdip Singh. No amount of the alleged bribe was recovered from me. I have been falsely implicated in this case. My duty is to collect taxes as are due from persons against whom demands for taxes are raised by the Corporation. I am neither concerned nor competent or authorised to review/ reduce or finalize assessment/ demands of House Tax.

I had gone for collection of the House Tax from persons in Block XXX Focal Point within my jurisdiction along with house tax Inspector Narinder Pal Singh. I had collected and issued receipts to various property owners/ occupiers for the house tax on 18.3.1997 in routine. A sum of Rs. 14580/- was due as House tax from Gurdip Singh. He gave cheque of Rs. 4050/- to me and placed some cash amount on the table in his shop towards payment of house tax due from him. I prepared the receipt for the cheque amount. Before I could count and issue the receipt for the cash amount some persons of the vigilance department in the plain clothes came there. They took into their possession cheque and the receipt book from me. They also took the cash amount from the table. I and Narinder Pal Singh were then taken to the vigilance office and this false case was planted on us and all proceedings have been fabricated.

Narinder Pal Singh also set almost similar defence. The accused did not lead any evidence in defence.

On appreciation of evidence, trial court while acquitting Narinder Pal Singh convicted accused Vijay Kumar and sentenced him accordingly.

Arguments heard. Record perused.

As far as Narinder Pal Singh is concerned, it has come on the record that it was Tehal Singh House Tax Inspector who was in-charge of the area and not Narinder Pal Singh. Vijay Kumar was the Tax Collector of the area. Narinder Pal Singh had gone in the absence of Tehal Singh. No evidence with regard to demand and acceptance of the illegal gratification and no recovery of the tainted money was effected from the accused Narinder Pal Singh, therefore, the trial court appears to have taken right view of the matter with regard to acquittal of Narinder Pal Singh.

So far as Vijay Kumar is concerned, there is no denying a fact that Vijay Kumar Senior Clerk was the Tax Collector of property No. 2185/ Booth No. 5, Phase VII, Focal Point, Ludhiana and was to recover the tax from the complainant. The accused admittedly had gone to the office of the complainant and received a cheque of Rs. 4050/- and also issued receipt therefor. It is also further revealed from the evidence that the accused had offered the complainant if he pays Rs. 6000/- to him then the property could be evaluated in such a manner that the tax could be reduced to Rs. 4000/- per annum only in future. It is further established that the receipt of Rs. 4050/-was filled in by his (Vijay Kumar) hand in the House Tax Book which impliedly proves the prosecution version to the hilt. Had the demand not been made and the amount of Rs. 6000/- not been received by him on account of illegal gratification for assessing the house tax @ Rs. 4000/-, then he would have recorded about the receipt of Rs. 6000/- also in the same receipt as issued by him for Rs. 4050/-. There was no reason to issue second receipt for a sum of Rs. 6000/- as cash.

It is admitted that though the case of the prosecution is that the amount of Rs. 6000/- was recovered from the right pocket of the pant of the accused Vijay Kumar which stands proved from the statement of the complainant, Amar Singh so also Babu Singh DSP. At the same time, Vijay Kumar has also not denied about the said amount of Rs. 6000/- but has stated that the same was recovered from the table. In this regard, it may be observed that it is most improbable that the complainant would place the amount of Rs. 6000/- on the table for the reason that it was not only Rs. 10,050/- in total which was to be paid by the complainant, but it was Rs. 14580/-. If Rs. 10,050/- only were to be paid then some probability of placing Rs. 6000/- on the table could arise. Vijay Kumar has not stated anything if there was any conversation with regard to payment of lessor amount then what he was to pay towards the house tax. Both complainant as well as Amar Singh (a recovery witness) have stated that hands of accused Vijay Kumar were dipped in the solution of water containing some powder, then the colour of the solution turned pink. The solution was transferred into a nip which was taken into possession vide memo Ex.PD. It has also come in the statement of both the witnesses so also DSP Babu Singh, that on pocket wash of the pant its colour became pink.

Learned Counsel for the appellant has made much stress that the shadow witness Raminder Kumar has not supported the prosecution case qua the acceptance of the bribe. In this regard it may be observed that the fact with regard to going of the accused to the office of the complainant and receipt of cheque of Rs. 4050/- stand admitted. The prosecution witnesses have also proved that the accused Vijay Kumar demanded Rs. 6000/- as illegal gratification and he accepted the same and the said amount was recovered from the pocket of his pant. All the three witnesses namely Gurdip Singh, Amar Singh and Babu Singh DSP, state that Raminder Kumar had gone inside the office and on giving signal by him they had entered the office and raided the accused. Raminder Kumar an independent witness has gone hostile and it is not un-common that the independent witnesses do turn hostile but that by itself would not prevent the court from finding the accused guilty if otherwise there was acceptable evidence in support of conviction.

The Delhi High Court while seriously criticizing the conduct of the hostile witnesses observed in case Tej Singh v. State and Anr. 2009 (2) RCR (Crl.) 427 observed as under:

It was held by the Supreme Court in the case of Sheikh Zakir Vs. State of Bihar, , that it is not quite strange that some witnesses do turn hostile but that by itself would not prevent a court from finding an accused guilty if there is otherwise acceptable evidence in support of the conviction? The Hon''ble Supreme Court has upheld this mandate of law in several judgments, including in the case reported as State v. Ram Prasad Misra and Anr. III (1996) CCR 115 (SC), where the Hon''ble Supreme Court observed as follows:

The evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but can be subjected to close scrutiny and for portion of the evidence which is consistent with the case of the petitioner or defence may be accepted. The fact that the hostile witnesses having given the statements about the facts within their special knowledge u/s 161 Cr.P.C. recorded during investigation, have resiled from correctness of the versions in the statements without giving any reason as to why the IO could record statements contrary to what they had disclosed, shows that they had no regard for the truth, they fabricated evidence in their cross examination to hold the accused which did not find place in their Section 161 statement.

In the instant case, though the shadow witness has intelligently resiled and tried to conceal the truth by stating that he had gone to urinate, therefore, he could not see the accused accepting the bribe, yet, he has not denied his presence at the spot as well as recovery of the tainted money. The recovery memos were prepared and all the formalities were completed in his presence and he has failed to explain as to how those documents came into existence and why he did not agitate his incorrect statement u/s 161 Cr.P.C. it is also well settled by now that even if the shadow witness resiles qua some aspect of the case, but the court is to see the other reliable evidence and circumstances and examine them on the anvil of credibility and trustworthiness and if the same are found to be credible and trustworthy, then there could be no reason to disbelieve the same. Reliance if any could be placed on the judgment delivered by the Apex Court in case Yakub Ismailbhai Patel v. State of Gujrat 2004 (4) RCR (Crl.) 731. In that case, two independent witnesses had resiled from their previous statements in that situation, the Apex Court held that the evidence of the witnesses has to be weighed and not counted and the court based the conviction on the testimony of the solitary eyewitness notwithstanding the fact that two other witnesses did not support the prosecution case. In case P.P. Fathima v. State of Kerala 2004 (1) RCR (Crl.) 81 the panch witness had not supported the prosecution case, but the Apex Court observed that it by itself is not fatal to the case of the prosecution. In the case of State of Rajasthan v. Udai Lal 2008 (2) RCR (Crl.) 956 four independent witnesses were shown to have resiled. However, the police officials had supported the prosecution case. In these circumstances the conviction on the evidence of the official witnesses, notwithstanding the fact that the independent witnesses had resiled, could be recorded, as the evidence is required to be weighed and not counted.

In the instant case also, it may be observed that though the independent witness Raminder Kumar had his own reasons for not supporting the prosecution case qua the giving of signal, but Amar Singh official witness as well as Babu Singh DSP have consistently stated that they had entered the premises only on giving of signal by Raminder Kumar. Otherwise, he has supported all other allegations as well as recovery of the tainted money, therefore, while scrutinizing his statement, there is no reason to disbelieve his testimony qua the recovery of tainted money and other aspects of the case, though he has not supported certain part of the occurrence, while supporting major part thereof. Similar view was taken by this Court in case Hari Dev Aggarwal v. State of Punjab 2009 (1) RCR (Crl.) 82 wherein it was observed as under:

Merely because the prosecution had to cross examine PW7 Gurbax Singh and Satpal PW8 on some minor points it will not mean that reliance cannot be placed on the testimony of these witnesses. Neither Karnail Singh PW6 nor DSP Sardul of Vigilance Department had any motive against the accused-appellant to falsely implicate him. Similar is the case of PW7 Gurbax Singh and PW8 Sat Pal. From their statements, I hold that the prosecution case against the accused-appellant that he had demanded illegal gratification and then had accepted the same was duly proved.

It was also observed in case Azad Singh and Anr. v. State of Haryana 2005 (3) RCR (Crl.) 150 wherein it was observed that even the statement of the witnesses who had gone hostile need not be rejected ipso facto on that account. The theory of "falsus in uno-falsus in omnibus" has no application in India. It means that if a witness is found unreliable on a particular aspect, the remaining portion of his statement can be relied upon if it is found truthful.

Thus, from the facts and circumstances of the instant case and keeping in view the statements of the other witnesses, the demand of Rs. 6000/- by alluring the complainant that the assessment of house tax could be brought down from Rs. 14580/- to Rs. 4000/- per annum, if he pays Rs. 6000/- to him and the fact with regard to the arrival of the accused Vijay Kumar and Narinder Pal Singh at the shop of the complainant and acceptance of Rs. 6000/- as bribe money and the acceptance of the remaining amount of Rs. 4050/- by Vijay Kumar accused stand duly established on the record. Some discrepancies and contradictions could be weighed only if the story of going to the office of the complainant by the accused would have been denied by him. Narinder Pal Singh had actually no control of the area, therefore, he was least interested in the amount, as such, it was Vijay Kumar only who was to receive the amount.

The next contention raised by the learned Counsel for the appellant in order to assail the conviction is that since neither Vijay Kumar was in power to re-assess the property nor was competent to reduce the amount, therefore, there was no occasion for the complainant to give illegal gratification to the accused.

Having heard the contention, the same lacks merit. Raminder Kumar PW as well as the complainant have categorically stated that they were called by the accused Vijay Kumar for adjustment of the house tax bill. The accused has also not denied if the complainant and the witnesses never came to him. The receipt of Rs. 4050/- issued by the complainant also impliedly proves the demand of Rs. 6000/- which may lead to reduction of house tax to Rs. 4000/-. Not only this, the accused also accepted the cheque of Rs. 4050/- which also proves the fact that the cheque was issued in consideration of the bribe money paid to him as he was to help the complainant to adjust the house tax bill one way or the other. The records further reveal that provisional assessment Ex.PL was made and notice for recovery of Rs. 14580/- was issued on 11.1.1997 and the complainant had also filed objection petition. The complainant was to appear before the Assessment Authority, however, he did not appear before the same. All this goes to prove the version as given by the complainant and he on assurance that on re-survey of the property by the accused being tax collector, the house tax assessment could be brought down. It is also often seen that in the house tax assessment cases, if the property is assessed wrongly under a bona fide mistake by the Assessing Authority or for some other reasons, then the same are subject to correction, alteration and modification by the Municipal Corporation. As such, the complainant cannot be doubted to say that the demand was raised by the accused on the assurance that he will get the bill managed and the same could be satisfied on payment of Rs. 4050/-.

Corruption has become rampant in the every walk of life. The people in an anxiety to become rich overnight and also being over jealous of the attractions prevailing in the material world want to maintain the standard at par with the highly paid persons or rich business men. They without taking into consideration the rules governing their official duties, their competency or jurisdiction, make speculations assuming evil designs in their minds and some times try to fetch money by making false promises.

That apart, the prosecution has led other evidence to prove the demand and acceptance of the amount. Kulwinder Singh (PW3) is a witness to whom the case property i.e. one scooter, two sample nips bearing the seal impression "BSG" were handed over for depositing the same in the malkhana. Tehal Singh (PW5) Superintendent admitted that he had assessed the property bearing No. 2185/Booth No. 5, Focal Point, Industrial Area, Ludhiana. He also admits entries Ex.PL and PM made in the register. Pawan Kumar Clerk (PW6) has proved the sanction Ex.PO regarding Vijay Kumar accused. Manjit Singh Superintendent (PW7) has proved the receipt Ex.P2 issued to the complainant for the recovery of the house tax. Babu Singh DSP (PW10) has proved the entire investigation conducted by him.

On the other hand, no plausible defence has been led in order to prove that the amount recovered from the right pocket of the pant of accused Vijay Kumar was part of the recovery of the house tax and not on account of illegal gratification. It is also not the case of the accused that he had received the amount of Rs. 6000/- treating the same to be part payment of the house tax.

No other argument has been advanced.

For the aforesaid discussions, this Court is of the considered opinion that the trial court has appreciated the evidence in the right perspective and no interference in the same is called for.

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