Dharam Paul Vs. State of J and K - Court Judgment

Excerpt:
- nirmal singh, j.1. this appeal is directed against the judgment passed by learned judge, special court, anti-corruption, jammu on 07.12.1987 whereby the appellant has been convicted for the commission of an offence under section 5(2) of the prevention of corruption act, (hereinafter referred to as the act) and sentenced to undergo imprisonment for a period of one year and also to pay fine of rs. 1000/- and in default of payment of fine, he has been directed to further undergo simple imprisonment for a period of two months. the appellant was further convicted under section 161 r.p.c. and sentenced to undergo imprisonment for a period of one year and also to pay a fine of rs. 1000/- and in default of payment of fine, he has been directed to further undergo simple imprisonment for a period of two months. it was ordered that both the sentences should run concurrently.2. the prosecution story, in brief, is that gian chand-complainant lodged a written complaint with vigilance organization by alleging that he moved an application to tehsildar r.s. pura, jammu for permission to cut some trees from his land in village baroda and said file was sent to the deputy commissioner's office, jammu. gian chand went to deputy commissioner's office, jammu for inquiring about the permission but when he met the accused and enquired about his application for permission on which the accused demanded rs. 100/- from him. gian chand-complainant requested the accused for reducing the demand amount. complainant went to the office of vigilance organization and narrated about the demand of the accused. on the complaint of gian chand a case against the accused was registered and the investigation was entrusted to sarnagat singh, inspector. the complainant produced the currency notes of rs,. 50/0 and five notes of rs. 10/- denomination before sarnagat singh inspector in presence of pw2 m.l. hastu and pw3 s.l. rasotra. the witnesses noted down the numbers of the currency notes where after phenolphthalein powder was applied to these currency notes by sub-inspector madan lal thappa. demonstration was also held by washing the hands of sub-inspector madan lal thappa in sodium carbonate solution which turned pink.3. the inspector sarnagat singh handed over the currency notes to the complainant. rattan lal selection grade constable was deputed to act as shadow witness and complainant was instructed to make pointed signal, the moment the amount was received by the accused on his demand. raiding party proceeded to the office of deputy commissioner, jammu. as per instructions of the inspector sarngat singh complainant went to the office of the accused. rattan lal, shadow witness followed him and stood outside the room in which the accused was sitting. the complainant handed over rs. 100/- to the accused on his demand and then he gave signal to shadow witness who further gave signal to the members of the raiding party. members of the raiding party came inside the room and the accused was apprehended. search of accused was conducted by pw-3 s.l. rasotra in presence of other witnesses. tainted money was recovered from the pocket of the pent of the accused and same was taken into possession by preparing memo and hands of the accused were also washed in sodium carbonate solution which turned pink. the pent of the accused was got removed and the pocket of the pent was washed in sodium carbonate solution which too turned pink. both the solutions were sealed in bottles and seal was given to professor s.l.rasotra.after completion of investigation, challan was presented before the court of learned judge, special court, anti corruption, jammu. after hearing counsel for the accused and perusing the record, learned trial court framed the charge sheet under section 5(2) of the act read with section 161 rpc, to which the accused pleaded not guilty and claimed trial.4. to prove the case, prosecution examined pws. gian chand, m.l. hastu, s.l. rasotra, inspector bal krishan bhushan, sub inspector, madan lal thappa, constable rattan lal, sub inspector saligram parihar, saddar quanongo, dy. commissioner's office prem singh, patwari sher singh, sub inspector jatinder kapahi, sub inspector, gopal dass, inspector sarnagat singh and inspector harnam singh as its witnesses.5. the statement of the accused was recorded under section 342 cr.p.c. to explain the incriminating circumstances appearing in the prosecution evidence. he denied simplicitor and false implications and pleaded that he has not demanded any money. the complainant tried to give him money for sweets etc. and he tried to put the same by force in his pocket.6. the accused was called to lead defence and in his defence he examined dws. mohd din, arun kumar, varinder kumar, khazan chand and amrik chand.7. after appreciating the evidence of the prosecution and defence, hearing public prosecutor and the counsel for the accused, learned judge, special court, anti corruption, jammu convicted and sentenced the accused as stated in paragraph no. 1 above, aggrieved by which the present appeal has been preferred.8. mr. k.s. johal, learned counsel for the appellant has submitted that the learned trial court has not appreciated the evidence on record in its right prospective rather appellant has been convicted and sentenced on surmises and conjectures. he submitted that in a case under section 5 (2) of the act it is obligatory for the prosecution to prove that the accused has made a demand of illegal gratification. he pointed out that as per the prosecution story appellant made a demand of illegal gratification on two occasions i.e. firstly on 20.02.1984, when the complainant visited the office of the appellant and inquired about the application moved by him for permission of cutting the trees and 2ndly on 24.02.1984, when the trap was laid and the alleged tainted money was recovered. he pointed out that with regard to the first demand allegedly made on 20.2.1984 there is no corroboration to the statement of the complainant. he contended that no reliance can be placed on the statement of the complainant when it is contradictory. further more the statement of complainant has been contradicted by dw khazan chand, from whom the complainant alleged to have taken a recommendatory letter. he contended that dw khazan chand was the best witness to corroborate the version of the complainant. he further pointed out that with regard to second demand made on 24.2.1984, when the trap was laid, investigator deputed rattan lal pw to act as a shadow witness and to hear the conversation between the accused and complainant but rattan lal deposed in his statement that he could not hear the conversation that took place between the accused and complainant as he was outside the room where the accused was sitting. he contended that the prosecution has miserably failed to prove the alleged demand made by the accused on 20.2.1984 and 24.2.1984. without proving the demand the accused cannot be convicted. in support of his arguments he relied upon ram parkash arora v. state of punjab : 1972crilj1293 , lachman dass v. state of punjab : 1970crilj526 , baj mohd v. state of j&k; 1980 klj 92, suraj mal v. the state (delhi administration) slj 1981 sc 30, sita ram v. state of rajasthan : 1975crilj1224 and doma and ors. v. state of maharashtra 1981 cr. l.j. 653.9. after hearing learned counsel for the parties and perusing the record i am of the considered opinion that there is no legal error in appreciating the evidence and convicting and sentencing the appellant.10. complainant gian chand has appeared as pw-1. he has deposed that he has submitted application for permission to cut the trees to the tehsildar, r.s. pura on 25.11.1983. this application was marked to patwari for report who after inspecting the spot reported to circle officer and the file came to tehsildar r.s. pura . tehsildar, r.s.pura asked circle officer to make a fresh report whereupon he too went on spot and made a report to tehsildar. tehsildar, r.s.pura submitted that file for permission to deputy commissioner, jammu. he obtained desptach no. from tehsil office, r.s.pura and went to. deputy commissioner office, jammu and on inquiry came to know that his file was with the accused. he knew one clerk there who gave a letter for the accused. he went to the accused who tore that letter and started calling him every day. he further deposed that the accused was receiving money from other persons and was doing their works, whereupon he also offered rs. 5/- but the accused told him that he would charge rs. 700/- out of which rs. 100/- would be charged in advance and the balance he will receive after he obtains the required permission from divisional forest officer. he went to his village and took loan of rs. 100/- and came to the office of commissioner, anti corruption, jammu. he narrated the whole story and told that he did not know the name of the accused. upon this the commissioner asked him to bring a written application, which he wrote and produced before the commissioner who sent him down to anti-corruption office. he produced rs. 100/- in that office which were treated with powder and returned to him. he further deposed that anti-corruption people called two witnesses and they noted the number of currency notes. he was also instructed to waive his cap when the accused would receive the amount. raiding party went to deputy commissioner's office jammu and there he offered demanded amount of rs. 100/- to the accused who took it and put the same in the pocket of his pent. he gave the pointed signal and the raiding party reached there and bribe amount was recovered from the pocket of the accused. hands and pocket of the accused were washed and colour of water turned pink in both the cases. he also identified his signatures.11. pw-6 rattan lal constable fully corroborated the statement of the complainant and deposed that the complainant disclosed in the vigilance office that he has submitted an application for permission to cut the trees in deputy commissioner office, jammu. quanongo dharma paul (appellant herein) was demanding a bribe of rs. 100/- and complainant produced one currency note of denomination of rs. 50/- and five currency notes of denomination of rs. 10/- each, which were applied with powder and returned to the complainant. he was deputed to act as shadow witness and to remain with the complainant and to see giving of bribe and to hear the conversation. he further deposed that raiding party reached the deputy commissioner office. he accompanied the complainant to the room of office of quanongo dharam paul. the complainant went inside the room while he remained standing outside 4-5 yards away. the complainant had some talk with the accused, which he could not hear but he saw that the accused was taking rs. 100/-from the complainant and putting the same in the pocket of his pent. then complainant-gian chand gave signal to him and he made the signal to other members of the raiding party.12. the prosecution also examined pw-2 m.l. hastu and pw-3 s.l. rasotra both professors in college of education, jammu. both of them have deposed in their statements that the complainant produced the application and currency notes, comprising one note of rs. 50/- and five notes of rs. 10/- denomination. powder was applied and they noted the numbers of the currency notes. they further deposed that they went to the office of deputy commissioner, jammu where they stayed at the gate and on receiving signal they also went inside the room where the accused was caught hold from his wrist by a vigilance person. accused was searched and tainted amount of rs. 100/- was recovered from the accused. they compared the numbers of currency notes which tallied. the hands as well as the pent pocket of the accused was washed in a solution and seized vide recovery memo expwgc/2 and gc3.13. the contention raised by the learned counsel for the appellant that no offence under section 5 (2) of the act is made out, as the prosecution has failed to prove that the appellant has made the demand of illegal gratification, is without any foundation. from the evidence of complainant itself, which is natural and most trustworthy, it is proved that the accused has made a demand of illegal gratification firstly on 20.2.1984 and secondly on the day when the trap was laid. this fact is proved from the cross examination of complainant-gian chand, that demand was made by the appellant. it has come in the cross examination of gian chand-complianant as under:that when he talked to the accused the other clerks were busy of their own. that those clerks were present when the bribe amount was given to the accused or when the accused was searched. that he went to given bribe in the after noon. that the day rs. 100/- bribe was given to the accused he had not met the accused earlier on that day, as the amount to be given had already been settled. that the witnesses were already in the office and that he did not remember whether the hands of that man who applied powder to those notes were washed or not. that he had taken the notes after treating them with powder and put them in his own pocket and did not wash his hand. that he did not shake hand with accused who was pleaded on receiving the amount. that, when he went to accused the latter inquired whether the amount has been brought to which he replied in affirmative. that then the accused asked for the amount and he gave him. that within lominutes or giving the money he waived his cap and the police party reached there and one police personnel caught hold of the accused. that search of the accused was conducted in presence of all other office people.14. pw rattan lal was a shadow witness. no doubt he has stated that he has not heard the conversation between the complainant and the appellant as he was outside the room but he has deposed that he has seen the appellant accepting rs. 100/- from the complainant.15. when the statement of gian chand-complainant is read as a whole, it establishes that appellant firstly settled the deal for rs. 100/- on 20.2.1984. as per that deal the complainant brought the money for which he had already made a complaint to the vigilance organization. when the complainant went inside the room of the appellant the appellant enquired from the complainant whether he has brought the settled amount to which the complainant replied in affirmative. then on the demand of the appellant complainant paid him the amount. passing of the money to the appellant has also been witnessed by pw rattan lal, who was acting as a shadow witness. when the complainant gave the signal to rattan lal, he further gave the signal to the raiding party and the appellant was apprehended. his search was conducted by pw2, h.l. hastu in presence of independent witness pw3, s.l. rasotra. both of them has deposed in their statements that the tainted money has been recovered from the pocket of the pent of the appellant. in the office of vigilance organization, when the complainant produced the currency notes, on these notes phenolphthalein powder was applied. the hands of the complainant were got washed in a solution colour of which turned to be pink. it is pertinent to mention here that complainant has admitted that he has not washed his hands but in his cross examination it has been made clear by the defence that the complainant had not hand shacked with the accused. if the complainant has not hand shacked with the appellant than the hand wash of the appellant would not turn to be pink. pw2 m.l. hastu and pw3, s.l. rasotra are two independent and respectable witnesses. both were working as professors in government college of education, jammu. they have no enmity to depose against the appellant that the currency notes were recovered from the pocket of the pent of the appellant. even though pw rattan lal has not heard the conversation between the complainant and appellant but he has deposed that he had seen the complainant conversing with the appellant and there after he had seen the passing of the money to the appellant which he put in the pocket of his pent. when the shadow witness failed to hear the conversation but he saw the passing of the money and the witness of the recovery deposed that the tainted money has been recovered from the pocket of the appellant and this tainted money was smeared with phenolphthalein powder and also numbers of the currency notes were noted down by the independent witnesses after recovery from the pocket of the pent their numbers were compared and on comparison they tallied, therefore, the legal presumption under section 4 can be drawn.16. in madhukar bhaskarrao joshi v. state of maharashtra 2001 cri.l.j. 175 (sc), it has been held as under. -once the prosecution establishes that gratification in any form-cash or kind- had been paid or accepted by a public servant the court in under a legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do (or forbear from doing) any official act. the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. so the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the courts have to draw on the factual premise that there was payment of gratification this will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. if acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who receives it. presumption can be drawn if public servant is found in possession of currency notes smeared with phenolphthalein and the prosecution does not have further duty to prove beyond the fact that prosecution witness had paid the demanded money to the appellant, public servant. 17. pws, gian chand, m.l. hastu, r.l. rasotra, bal krishan bhushan, madan lal thappa, rattan lal, si salik ram, gopal dass, and sarnagat singh have faced searching cross examination, but the defence has failed to make any dent in their evidence. from their evidence it is established that the appellant has demanded and accepted the illegal gratification of rs. 100/- for doing favour to the complainant.18. khazan chand appeared as defence witness and denied that he had given any recommendatory letter to the complainant but when he was cross examined, he admitted that during february 1984 complainant had came to him but he denied the version of the complainant with regard to giving any recommendatory letter by deposing that sher singh patwari was dealing with the application of the complainant for permission to cut the trees. this version of khazan chand is not believable, as the application of the complainant had already been sent to the office of deputy commissioner jammu with the report of patwari and circle officer. he supported the case of the appellant being his colleague. further more no reliance can be placed on his statement as he himself was caught in a trap case during the year 1979 when he was working at akhnoor.19. the defence has also examined dw- mohd din. he has deposed that in the month of february 1984 while he was preparing statistical statement alongwith arun kumar, patwari in the room of the accused dharam paul under his supervision, a person entered that room and inquired about his application and accused replied that he has completed the file and given the same to dispatcher and asked him to inquire from that person. that person (complainant) asked the accused for coming out of room but accused expressed his business and asked that person to talk in the room itself. that person asked the accused to have something for tea which the accused refused whereupon that person took out some currency notes and offered the same to the accused but the accused refused to take the same though said person tried to give that amount to accused again and again, however, accused pushed him back every time. meanwhile some vigilance officials entered the room and caught hold of accused and started searching him.20. from the evidence of mohd din, it has been established that the complainant entered the room and had the conversation with the appellant but the version given by mohd din that complainant was forcibly offering the money to the appellant and appellant had refused to take the same and meanwhile vigilance officials entered the room and apprehended the appellant and searched him is not believable. if this would have been the position than the tainted money would not have been recovered from the pocket of the appellant.21. to the same effect are the statements of arun kumar patwari, dw-3 varinder kumar and dw-5 amrik singh. they have stated in their statements that the complainant asked the appellant to accept the money but accused refused to take the same. if complainant was giving money forcibly to the appellant, it does not appeal to reason that in presence of so many officials, the complainant would have been able to forcibly put the currency notes in the pocket of the appellant. if the complainant had tried to put the currency notes in the pocket of the accused then these dws must have caught hold of the complainant and raised alarm and would have also reported the matter to the deputy commissioner, under whose control they were working. even after registration of case till the trial terminated the appellant and other defence witnesses have not made any complaint against the complainant or against the officials of the vigilance organization that appellant has been falsely implicated. when the evidence of defence witnesses is scanned as also from the admission of the appellant it is proved that the complainant came to his office and had a conversation with him. the appellant and the defence witnesses have virtually have admitted the occurrence but they have given a twist to the case in a different way by pointing that complainant was offering money for tea etc. forcibly but the money has been recovered from the pocket of the pent of the appellant. the appellant has not given any explanation as to how the tainted money was in his pocket. the judicial precedents cited by the learned counsel for the appellant are not relevant and are distinguishable on their own facts.22. the prosecution has been able to prove its case on the evidence given by complainant, gian chand, and pws, m.l. hastu, s.l. rasotra, rattan lal, bal krishan bhushan, madan lal thappa, saligram and sarnagat singh. the version given by the complainant gian chand and the prosecution witnesses is truthful and unblemished and there is no previous enmity which has either been alleged or proved between the appellant, complainant or other prosecution witnesses to falsely implicate the appellant. so it proves that the appellant has demanded and accepted rs. 100/- as illegal gratification from the complainant gian chand, therefore, the learned trial court has rightly convicted the appellant.23. the appellant is facing the agony of trial from the last 21 years but this delay is not on the part of the prosecution or on the court. perusal of the record shows that the appellant himself has caused the delay in disposal of the trial as well as this appeal. the appeal was listed for hearing on a number of occasions but the same cannot be heard because of absence of the appellant or his counsel. when there is no delay on the part of the prosecution or of the court then the delay itself cannot give a cause to reduce the sentence from minimum, as prescribed under the act even though it has taken a long time for the disposal of the trial and appeal. further more the menace of corruption is spreading like cancer and deterrent punishment is required to be imposed so that no public servant dares to commit such like offence. if the sentence is reduced in these cases, than the minimum sentence prescribed, it will give a wrong signal to the society, as such, the sentence is also up held.24. for the reasons mentioned, there is no merit in this appeal, same is, accordingly, dismissed.