Baldev Singh vs State Ofpb.Etc
2022 Latest Caselaw 14550 P&H

CRA-S-734-SB of 2005                                    [1]


               IN THE HIGH COURT OF PUNJAB & HARYANA
                         AT CHANDIGARH
                              CRA-S-734-SB of 2005
                              Date of Decision: 16th November, 2022

Baldev Singh
                                                                      Appellant
                                       Versus

State of Punjab
                                                                    Respondent

CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN

Present:       Mr. P. S. Ahluwalia, Advocate and
               Ms. Bhavi Kapur, Advocates for the appellant.
               Mr. Arun Luthra, Deputy Advocate General, Punjab.
               ***

AVNEESH JHINGAN, J (Oral):

1. Aggrieved of the conviction and sentence in FIR No. 52 dated

7.11.2000, under Section 7 read with Section 13(2) of the Prevention of

Corruption Act, 1988 (for short, 'the Act'), registered at Police Station

Vigilance Bureau, Patiala, the present appeal is preferred by Baldev Singh

(appellant).

2. The facts as set up by the prosecution are that at the instance of

Dev Raj, Commission Agent, running a concern in the name of M/s Sharma

Trading Company, Bhawanigarh the FIR was registered. He stated that

from his shop, paddy was to be purchased by Markfed. Surjit Singh farmer

had brought 500 bags of paddy which after cleaning was filled in the

bardana supplied by Markfed. The allegations were that the appellant

posted as Inspector in Markfed demanded bribe of Rs.2/- per bag, for

purchasing the paddy. The deal was struck for Rs.1/- per bag. The

complainant along with the farmer reported the matter to the Vigilance

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Bureau. A raiding party was constituted. Bal Krishan, Inspector Municipal

Committee and Balbir Singh (SDO) Irrigation were the official witnesses.

Surjit Singh was made the shadow witness. Five currency notes of Rs.100/-

each were laced with Phenolphthalein Powder and initialled. The shadow

witness and the complainant were instructed to hand over the tainted

currency to the appellant on demand. On 7.11.2000, the raiding party

proceeded to Mandi, Bhawanigarh. The complainant and the shadow

witness were sent to the office of the appellant. On receiving the laced

currency by the appellant, the shadow witness gave signal to the raiding

party. The appellant was apprehended while he was starting his scooter. The

tainted currency was thrown by him on the road. On washing of the hands

and pocket of shirt of the appellant, the colour of the solution changed.

3. After receiving of the sanction to prosecute, final report was

filed and charges were framed.

4. The prosecution to support its case examined ten witnesses.

5. In his statement under Section 313 Cr.P.C., the appellant

claimed that he was innocent. An FIR was registered against the

complainant, as he embezzled and misappropriated paddy of Punjab Agro

Industrial Corporation. Thereafter, he had installed another rice mill in the

Benami name of his son-in-law. The sheller installed was allocated to

Markfed for custom milling. The complainant was insisting for stocking

the paddy of Markfed in the sheller but due to his antecedents, the request

was not accepted and for this reason he falsely implicated the appellant.

6. In defence, the appellant examined six witnesses.

7. The trial court concluding that the Investigating Officer and

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shadow witness had supported the case of prosecution; the demand and

acceptance was proved and on washing of the hands and pocket of the shirt

of the appellant, Sodium Carbonate solution turned pink, convicted the

appellant under Section 7 read with Section 13(2) of the Act vide judgment

dated 9.4.2005. Vide order of even date, the appellant was sentenced as

under:

Section             Sentence                          Sentence in default of
                                                      payment of fine
Section 7 of the Undergo               rigorous To further undergo
Act              imprisonment for two years rigorous imprisonment
                 and fine of Rs.2000/-          for three months
Section 13(2)    of Undergo               rigorous To further undergo
the Act             imprisonment for two years rigorous imprisonment
                    and fine of Rs.2000/-          for three months

8. Learned counsel for the appellant submits that it is a case of

false implication. The complainant was carrying a grudge against the

appellant. The FIR No. 22 dated 2.2.2000, under Section 406 IPC, at

Police Station Bhiwanigarh was got registered by Punjab Agro Industrial

Corporation against the complainant. His relative had started a rice mill for

which the complainant was pressurizing the Markfed to store paddy and it

was not acceded to. It is further argued that the shadow witness and the

official witnesses had not supported the case of the prosecution to prove

demand and acceptance. The contention is that the defence taken was duly

corroborated by the witnesses and the documents exhibited.

9. Learned counsel for the State defends the impugned judgment.

He submits that the complainant has supported the case of the prosecution

and proved the demand of bribe from the complainant for purchase of 500

bags of paddy stacked outside the shop of the complainant. He further

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submits that the official witnesses have duly supported the procedure

adopted for laying the trap and after apprehension of the appellant.

10. Heard learned counsel for the parties and perused the record.

11. Before proceeding further, it would be gainful to quote the

following decisions, wherein it has been held that for conviction under

Sections 7 and 13 of the Act, the prosecution has to prove the demand and

acceptance beyond reasonable doubt. Further that the complainant in a way

is an interested party, his deposition is to be considered with caution and if

need be to be corroborated with other evidence.

12. In K. Shanthamma v. State of Telangana, 2022(2) RCR

(Criminal) 195, the Supreme Court held as under:

7. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act. In the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SC 152, and another, this Court has summarised the well-settled law on the subject in paragraph 23 which reads thus:

23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring

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home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."

13. The Supreme Court in Mukut Bihari and another v. State of

Rajasthan, 2012(3) R.C.R. (Criminal) 980, held as under:

"Thelaw on the issue is well settled that demandof illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to showthat the moneywas taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."

(Emphasis supplied).

14. There is no dispute on the fact that the complainant was a

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Commission Agent in Anaj Mandi, Bhawanigarh. Earlier, he was running a

rice mill in which the paddy of procurement agencies was misappropriated,

resultantly FIR No. 22 dated 2.2.2000 under Section 406 IPC was registered

against him. The appellant at relevant time was posted as Inspector in

Markfed at Anaj Mandi, Bhawanigarh.

15. On considering the facts and re-appreciation of the evidence, it

is evident that apart from the complainant, there is no other witness to the

demand made by the appellant. The complainant is an interested party to the

extent that he wants the trap to be successful and caution needs to be

exercised for solely relying upon his deposition. There is no corroborative

evidence supporting the demand made by the appellant.

16. It would not be out of place to mention that as per the

statement made under Section 313 Cr.P.C., the complainant had a grudge

against the officials of Markfed for not storing paddy in the rice mill being

run by the relative of the complainant.

17. The shadow witness PW1-Surjit Singh did not support the case

of the prosecution and was declared hostile. It would not be out of place to

mention that as per his statement, the complainant tried to thrust the laced

currency in the pocket of the appellant. To similar effect is the statement of

the official witness PW2-Bal Krishan, who further stated that hands of the

appellant were washed with Sodium Carbonate solution and the colour

turned dirty pinkish.

18. Balbir Singh, SDO, the official witness deposed as PW6. In

his testimony, he stated that he saw that the scooter of the appellant had

fallen. He was caught from his arms by Inspector Kewal Singh and on

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washing of the hand of the appellant, the colour of Sodium Carbonate

solution turned dusty. In the cross-examination, he stated that mob had

collected at the spot and people were shouting that the complainant was

getting the appellant falsely implicated. It would be relevant to quote the

relevant portion of his statement:

"After some time, Surjit Singh, Des Raj and Baldev Singh, then

said after some time myself and DSP noted that some scooter

had fallen on the ground. We went near the scooter and I saw

that Inspector Baldev Singh now present in the court was there

and his arms were caught from behind by Inspector Kewal

Singh i.e. Sub Inspector of Vigilance Police. The hands of

accused present in the court were put in a glass which was

having solution of some powder. After diping the hands of

accused in the glass, the water converted into dusty colour."

19. No doubt, the Investigating Officer had supported the case of

the prosecution by reiterating in details the procedure adopted prior to

laying of the trap and after apprehension of the appellant but he was not the

witness to the demand or the alleged acceptance. In his cross-examination,

he stated that he had not made any enquiry about the agencies involved in

procuring the foodgrains at the relevant time. He further stated that he was

intimated by District Manager that verbal instructions were given that after

25th October, 2000 no purchases were to be made by Markfed.

20. The complainant appearing as PW5 reiterated his allegation

against the appellant but in his cross-examination admitted that Markfed

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had stopped purchase of paddy from 20th October, 2000 and any other

procurement agency could have purchased the paddy. Further, after 20th

October, 2000 the paddy was to be purchased by Food and Supplies

Department and not Markfed.

21. Defence witnesses DW1- Jugal Kishore and DW3-Gobind

Ram Commission Agents in Anaj Mandi, Bhawanigarh deposed that the

complainant forcibly tried to put the notes in the pocket of the appellant.

They further stated that no paddy was lying in front of the shop of the

complainant.

22. DW2-Ashwani Kumar Constable proved the fact that FIR No.

22 dated 2.2.2000 was registered against the appellant. DW4-Kahan Singh

Clerk, Market Committee brought the register to show that no paddy was

lying in the Mandi from 3.11.2000 to 15.11.2000. DW5-Hardeep Singh,

Senior Branch official Markfed proved Exs. D9 and D10. The exhibits

showed that till 20.10.2000, the shop of the complainant was earmarked to

Markfed and from 20.10.2000, the Food and Supplies Department was the

procurement agency for the shop of the complainant.

23. The prosecution failed to prove the acceptance of illegal

gratification by the appellant. The shadow witness, official witnesses and

the defence witnesses (DW1 and DW3) consistently deposed that currency

was being thrust in the pocket of the appellant. In the facts of the present

case, no presumption can be drawn against the appellant under Section 20

of the Act. The shadow witness-Surjit Singh, as per the complainant who

had brought the paddy for sale, specifically stated that no demand was made

by the appellant in his presence.

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 CRA-S-734-SB of 2005                                     [9]

24. The matter needs to be considered from another angle. The

defence taken was that prior to the day of raid, Markfed had stopped

procuring paddy from Mandi and shop of the complainant was not ear-

marked with Markfed after 20.10.2000. The defence was substantiated by

Ex.D9 and D10. The complainant admitted this fact in the cross-

examination. In such circumstances, it can safely be concluded that the

appellant had no occasion to demand illegal gratification for purchase of

paddy.

25. It would not be out of place to mention that from the perusal of

the testimony of DW6, it is forthcoming that during an enquiry by the

higher police official, the conclusion arrived at was that it is a case of false

implication. Resultantly, earlier an untraced report was presented in the

court.

26. On failure of the prosecution to prove the demand and

acceptance, the conviction under Sections 7 and 13(2) of the Act cannot be

sustained. The impugned judgment of conviction and order of sentence are

set aside.

27. The appeal is allowed.

                                               [AVNEESH JHINGAN]
                                                    JUDGE
16th November, 2022
mk
             1. Whether speaking/ reasoned           :         Yes / No
             2. Whether reportable                   :         Yes / No




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