CIVIL APPEAL None on 21 August 2004

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Appeal No.S-1698-SB of 2004Date of Decision: February 18, 2015

Om Mool Shankar Sharma

...Appellant

VERSUS

State of Punjab

...Respondent

CORAM:HON'BLE MR. JUSTICE INDERJIT SINGH

Present:Mr.Deepender Singh, Advocatefor the appellant.

Mr.A.S.Klar, Asstt. Advocate General, Punjabfor the respondent-State.

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INDERJIT SINGH, J.

The appeal has been filed by the appellant against thejudgment of conviction dated 21.08.2004 and order of sentence dated23.08.2004, passed by learned Special Judge, Moga, whereby theaccused-appellant was held guilty and convicted and sentenced toundergo rigorous imprisonment for a period of four years and to pay afine of `4,000/- and in default of payment of fine, to undergo rigorousimprisonment for a period of six months under Section 7 of thePrevention of Corruption Act, 1988. He was further directed toundergo rigorous imprisonment for a period of six years and to pay afine of `6,000/- and in default of payment of fine, to undergo rigorousimprisonment for a period of six months under Section 13(2) of theVINEET GULATIPrevention of Corruption Act, 1988. Both the sentences were ordered2015.03.18 16:11I attest to the accuracy andauthenticity of this documentChandigarh to run concurrently.

The brief facts of the prosecution case are that afterinvestigation, untraced report was submitted. Learned Special Judge,Moga disagreed with the untraced report and took cognizance ofoffences and put the accused to trial. As per the facts given in theuntraced report, Chamkaur Singh complainant along with GurdevSingh, Ex.Sarpanch came to DSP Baljit Singh, Punjab VigilanceBureau and got recorded his statement. Complainant stated that hehad been Govt. ration depot holder since January 1999. He wasdistributing kerosene oil, sugar etc. On 12.11.1999, Om MoolShankar Sharma, Inspector, Food Supply Moga along with otheremployee came to his depot. He had checked the depot. Duringchecking, record was found correct. Accused intentionally levelledallegations that depot was lying closed and identity board was notdisplayed. By making report, accused got the supply stopped to hisdepot from District Food Supply Controller (DFSC) on 17.12.1999.The complainant received a notice from DFSC Moga about allegationslevelled against his depot, inviting explanation. It is also stated thatwritten explanation to notice was given. After giving reply to thenotice, complainant met Om Mool Shankar Sharma, Inspector in hisoffice. Accused said that DFSC had ordered enquiry from village andto report. Accused went to the village and recorded statements of 14-15 card holders. On 14.02.2000, complainant met accused in hisoffice and requested him to send favourable report. Accused said thathe would take bribe of `2,000/- for sending report favouring him. Then accused agreed to send the report favouring complainant by takingbribe of `1,000/-. Accused said that he would take `500/- beforesending the report and remaining `500/- would be taken after sendingthe report. Accused asked the complainant to visit his office at Mogaafternoon on 16.02.2000 with bribe money of `500/-. Complainantwent back to his village and met Gurdev Singh, Ex.Sarpanch and toldwhole story to him. Then they contacted Vigilance Department. Aftermaking demonstration etc. by applying Phenolphthalein powder, a raidwas planned. Jagdish Arora, Senior Clerk of office of Deputy Director,Animal Husbandry, Moga was joined as Govt. witness. Gurdev Singh,Ex.Sarpanch was deputed as shadow witness. Raid was conducted.The amount of `500/- was recovered. After necessary investigation,untraced report was submitted before the Court.

Finding prima facie case, accused-appellant was charge-sheeted under Sections 7 and 13(2) of the Prevention of CorruptionAct, to which he pleaded not guilty and claimed trial.

Analysis

In support of its case, prosecution examined PW-1Chamkaur Singh, complainant, PW-2 Gurdev Singh, Shadow witness,PW-3 Jagdish Arora, Govt. witness, PW-4 Barish Chander, employeeof District Food and Supply Office, Moga, PW-5 Head ConstableSukhbir Singh, PW-6 Amarjit Kaur, Senior Clerk office of DFSC, Moga,PW-7 Krishan Lal Dhingra Ex.AFSO, PW-8 Constable Resham Singhand PW-9 DSP Baljit Singh, Investigating Officer.

At the close of prosecution evidence, the accused- appellant was examined under Section 313 Cr.P.C. and he denied thecorrectness of the evidence and pleaded himself innocent. Indefence, accused-appellant examined DW-1 Mehal Singh, DW-2Sadhu Singh and DW-3 Lal Singh.

The learned trial Court, after appreciation of the evidence,convicted and sentenced the accused-appellant, as stated above.

At the time of arguments, learned counsel for the appellantargued that accused-appellant is entitled to acquittal as no sanctionhas been taken by the prosecution under Section 19 of the Preventionof Corruption Act. He further argued that no demand has been provedby the witnesses, therefore, on this ground also, appellant is entitledto acquittal. He next argued that a false case has been planted that iswhy the police filed untraced report but the Court took cognizancewithout any cogent evidence. Learned counsel for the appellant,therefore, argued that there being merit in the appeal, the sameshould be allowed and accused-appellant should be acquitted.

On the other hand, learned State counsel argued that caseof the prosecution has been duly proved. He admitted that nosanction was taken in the present case from the competent authority.He further argued that prosecution's case has been duly proved byPWs by leading cogent evidence. Learned State counsel, therefore,argued that there being no merit in the appeal, the same should bedismissed.

I have heard learned counsel for the appellant as well aslearned State counsel and have gone through the record minutely and carefully.

From the evidence on the record, I find that the sanctionunder Section 19 of the Prevention of Corruption Act is necessarybefore taking cognizance by the Court. Learned State counsel hasadmitted that in this case, no sanction has been obtained from thecompetent authority. In other words, no sanction has been granted bythe competent authority for prosecution of the present appellant. As,no sanction has been granted by the competent authority, therefore,cognizance cannot be taken by the Court in the absence of sanctionand appellant is liable to be acquitted on this ground alone.

Next, I find that PW-1 Chamkaur Singh complainant, inchief-examination stated that he met accused Om Mool Shankar andInspector Balbir Singh, who had accompanied accused at the time ofchecking, in the office of the accused. He told them that no supplyhad been made to his depot. Accused did not speak but InspectorBalbir Singh told the complainant that he will get the supply from thatmonth. However, accused asked the complainant that he should askto Inspector Balbir Singh and then he will get the supply issued againto his depot. Then Inspector Balbir Singh asked for `1000/- as illegalgratification from him. Accused Om Mool Shankar did not demandillegal gratification but he was also sitting at that time. Thecomplainant further stated that he told Inspector Balbir Singh that hehad only `500/- in his pocket. The deal was struck at `500/- andcomplainant handed over `500/- to Inspector Balbir Singh. He furtherstated that he had also intimated to the Vigilance Bureau against

Ratio decidendi

accused Om Mool Shankar that he had got suspended the rationdepot of the complainant and also demanding illegal gratification fromhim. In the chief-examination, the complainant further stated that hehanded over `500/- to Inspector Balbir Singh, who further handedover the same to accused Om Mool Shankar. The aforesaid incidenthad taken place in the presence of Jagdish Arora, Shadow witness.Then he called the officials of the Vigilance Staff, who raided andrecovered `500/- from the left pocket of the shirt of Om Mool Shankar.He further deposed that he had gone alone to give the illegalgratification. In cross-examination PW-1 Chamkaur Singh stated thathe had given the tainted money to Inspector Balbir Singh, who furtherhanded over the same to Om Mool Shankar. This statement of PW-1Chamkaur Singh is not as per the prosecution version. He hasnowhere proved the demand raised by the present appellant. He hasnowhere stated that bribe money of `500/- was paid to presentappellant. Rather, as per his version, he paid the money to InspectorBalbir Singh, who demanded the bribe and further handed over thesame to present appellant. He also made material improvements inthe statement. He nowhere stated that Gurdev Singh, shadowwitness was present there. Rather, he stated that money was paid inthe presence of Jagdish Arora, shadow witness, which is not theprosecution case. The complainant nowhere stated that JagdishArora was the Government witness, rather he stated him as a shadowwitness, which is also against the prosecution version. Therefore,from the statement of complainant, a reasonable doubt exists in the prosecution version.

PW-2 Gurdev Singh, Ex. Sarpanch, shadow witness,stated that Chamkaur Singh asked him to stand outside the door ofthe room of the accused while he himself went inside. He cannot tellwhat transpired between complainant and accused. However,Chamkaur Singh gave signal to him and thereafter, he (PW-2) gavesignal to the police party. This statement further shows that evenshadow witness Gurdev Singh had not deposed regarding thedemand made by present appellant. PW-2 further stated in cross-examination that accused was standing outside the office while otherofficials were inside the office. This fact is also contradictory to theprosecution version. He also stated that he does not know ifChamkaur Singh had handed over any amount to the VigilanceBureau because at that time, he was not present. He further stated incross-examination that office had boundary wall of 5-6 feet in height.He remained standing outside the boundary wall near the gate of theoffice of the accused. The office is situated 30-40 feet from theboundary wall.

From the evidence on record as deposed by complainantand shadow witness, a reasonable doubt exists in the prosecutionversion. The statements of these witnesses are contradictory to theprosecution version. Further, as already discussed, the demand andacceptance by the accused-appellant has not been proved by leadingcogent evidence. It is settled law that mere recovery of taintedcurrency notes, alone is insufficient to convict an accused. The prosecution is to prove the illegal demand, acceptance and recoveryof bribe money from the accused. The prosecution has failed to provethe same by leading cogent evidence. Furthermore, as alreadydiscussed, there is no sanction under Section 19 of the Prevention ofCorruption Act.

In view of the above discussion, I find that a reasonabledoubt exists in the prosecution version and by giving benefit of doubt,the appellant is acquitted of the charges framed against him. Thejudgment of conviction dated 21.08.2004 and order of sentence dated23.08.2004, passed by learned Special Judge, Moga are set aside.

Since, the appellant is on bail, his bail bonds stand discharged.

February 18, 2015Vgulati

(INDERJIT SINGH)JUDGE