State Of Punjab vs Sohan Singh

State of Punjab ... Appellant

Versus

Sohan Singh .... Respondent

JUDGMENT

S.B. SINHA, J.

1. This appeal is directed against the judgment and order dated 29th

October, 2003 passed by a learned Single Judge of the High Court of Punjab

and Haryana whereby a judgment acquitting the respondent from the charges

under Section 13(1) read with Section 13(2) of the Prevention of Corruption

Act, 1988 (for short `the Act') passed by the learned Special Judge, Faridkot

dated 25th September, 1990 was reversed.

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2. The prosecution case in brief as under is :-

Jasdev Pal Singh (PW-5), complainant, applied for grant an electric

connection for a 5 H.P. Motor pump. On receipt of demand notice in July,

1987, he deposited the necessary fees and the test report. The site was

inspected by the respondent, who was Junior Engineer with Punjab State

Electricity Board alongwith the S.D.O. They approved the installation and

sent the case to the Executive Engineer, Bhatinda. The connection was

sanctioned within two months. It was case of the prosecution that whenever

complainant went to see the respondent in connection with the release of the

electric connection, the latter kept on putting him off.

It was further case of prosecution that on 22nd December, 1988 the

Complainant along with Sarwan Singh (PW-6) went to Kotkapura and met

the respondent, who demanded a sum of Rs.500/- for release of the

connection. On request of the Complainant, respondent agreed to receive

Rs.200/-. The Complainant and Sarwan Singh told the respondent that they

would again come at 2.30 or 3.00 p.m. It was further case of the prosecution

that the Complainant and Sarwan Singh visited the office of the Vigilance at

Faridkot and narrated the whole incident to the concerned officer, whereafter

his statement was recorded. On the basis of an endorsement made by

2 Inspector Gurbachan Singh, a First Information Report No.119 dated 22nd

December, 1988 under Section 13(2) of the Act was recorded. It was

further case of the prosecution that the complainant produced two currency

notes of the denomination of Rs.100/- each. The number of the notes were

noted down and phenolphthalein powder was applied thereto and nothing

remained in the pocket of the complainant. The complainant was asked to

hand over the amount to the respondent on his demand. Sarwan Singh (PW-

6) was directed to watch and listen to the conversation between the

respondent and the Complainant and if and when the money is passed to the

respondent, he should give a signal to the raiding party. One Inderjit Singh,

Assistant in the Treasury Office also joined the raiding party. As per the

prosecution, notes were handed over to the accused on demand, at the tea

shop to which the parties had proceeded to take tea having been offered by

the respondent. The raiding party was then signaled whereupon the raid was

conducted and recovery of a sum of Rs.200/- was made

Respondent was charged for commission of an offence under Section

13(1) read with Section 13(2) of the Act.

3. Before the learned Special Judge besides the Complainant Jasdev Pal

Singh (PW-5), his friend Sarwan Singh (PW-6) was examined to prove the

3 alleged demand and acceptance of the bribe and the recovery thereof. They

supported the prosecution case. Hardial Singh (PW-7), is also a witness to

the recovery of the currency notes.

4. We may, however, notice that the prosecution examined one

Gurcharan Singh (PW-9), UD.C. working in the Punjab State Electricity

Board, Faridkot. He produced the records in regard to the order of grant of

Service Connection to the Complainant Jasdev Pal Singh. According to

him, the electrical connection was given to him on 30th March, 1989. The

prosecution sought to bring on record that whereas one Suckchain Singh,

who was at serial number 38 in the seniority list had been granted

connection on 25th January, 1989, the complainant Jasdev Pal Singh, who

was at serial number 36, was given connection on 30th March, 1989. PW 9,

however, in his cross-examination accepted that whereas Jasdev Pal Singh's

seniority was in the High Tension connection list, the names of said

Suckchan Singh and another Surain Singh were in the Low Tension

seniority list. He further admitted that the seniority positions in the High

Tension List and the Low Tension List are not inter-connected.

We may furthermore notice the relevant portion of his deposition,

which is in the following terms :-

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"Surain Singh was Ex-Serviceman and there was a priority for his connection. The seniority list cannot be modified by the JE, S.D.O. or by the Executive Engineer. It is maintained i.e. the Seniority List are maintained by the Secretary of the Board of Patiala. The accused could not give connection to any one before his turn. The consumer can go either to the JE or the SDO to enquire about his turn of connection. But no purpose can be served by the consumer to go the JE or SDO before the turn of his connection."

5. The complainant PW-5 was given a suggestion that before giving

electric connection a transformer was required to be installed which fact he

admitted as also that the same having been installed on 30th March, 1989, he

got the connection on the same date. The Complainant admitted that the

connection was to be released only after the installation of transformer as per

the sanction order.

6. We may place on record that one Inderjit Singh was an independent

witness. On the purported ground that he had been won over, he was not

examined, in support of material was brought on record. On what basis the

said finding of fact was arrived at is not known.

7. The learned Special Judge relying on or on the basis of the evidence

adduced by the prosecution and in particular the deposition of Jasdev Pal

5 Singh (PW-5) and Sarwan Singh (PW-6) found the respondent guilty of

commission of the said offence.

On an appeal having been preferred by the respondent the High Court

by reason of the impugned judgment reversed the said decision.

8. Mr. Gagandeep Sharma learned counsel appearing on behalf of the

State upon taking us through the depositions of the prosecution witnesses

would contend that the High Court committed a serious error in passing the

impugned judgment in so far it failed to take into consideration that the

prosecution has not only able to prove demand and acceptance of the bribe

but also recovery of the sum of Rs.200/- and, thus, the onus of proof was on

the accused to discharge the burden that the amount recovered from him was

not by way of illegal gratification.

9. Mr. Rajiv Dutta, learned senior counsel appearing on behalf of the

respondent, however, would support the impugned judgment.

10. The High Court in support of its judgment inter alia opined :-

i) The prosecution is required to establish the demand of bribe by

the accused; acceptance whereof as also the amount in question

6 from his possession and having regard to the fact that there

exists serious discrepancies in the statements of the witnesses in

regard to the events immediately prior to the payment of the

amount of bribe, the prosecution cannot be said to have proved

its case.

ii) No reason has been assigned by the prosecution as to why the

independent witness Inderjit Singh, who was a government

employee, had been given up by the prosecution.

iii) The circumstantial evidence in regard to the alleged

commission of the offence by the respondent was not sufficient

to establish the case of bribery in the light of the ingredients

thereof.

11. Indisputably the complainant PW-5 and Sarwan Singh PW-6 are

friends. The complainant had applied for grant of the electric connection for

running a 5 H.P. motor. It was a High Tension connection. Indisputably

again, in view of the categorical statement made by Gurcharan Singh, PW-9,

the High Tension connection could be granted in terms of the seniority list

only and after installation of the transformer. Respondent, who was a Junior

Engineer, according to PW-9 had no role to play in the matter. Priority in

7 the matter of grant of connection only could be granted by the higher

authorities in the Board.

12. It was in the aforementioned factual scenario, the defence of the

respondent must be considered.

He in his statement under Section 313 of the Code of Civil Procedure

inter alia stated :-

"I am innocent. Some days prior to 22.12.1988 Jasdev Pal Singh came to me and inquired about his turn of connection. I told him that probably it would be on 30.3.1989. He insisted to give him connection out of turn which I refused. This led to altercation between me and Jasdev Pal Singh. He told me to teach me a lesson. All this happened in the presence of Lakhbir Singh. On the alleged day of occurrence alongwith Ram Badhan Peon and some customers were present at the tea shop of Janakraj at Kotkapura where Jasdev Singh came and he tried to forcibly thrust the currency notes in my pocket, which I tried to push with my hands and I raised alarm. The notes remained with Jasdev Pal Singh and the police came and they took the currency notes from Jasdev Pal Singh. Sarwan Singh and Hardial Singh ASI were not present. Janak Raj owner of the tea shop was present throughout. The police took me to the police station and they concocted the case against me on 23.12.1998 and the documents were anti- dated."

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13. It is also necessary to place on record that the respondent in support of

his case examined two defence witnesses. DW-1 Janak Raj is the owner of

the tea shop where the trap was said to have been laid. We have noticed

hereinbefore that PWs. 5 and 6 visited the respondent in his office whenever

he offered them tea and they came out from the office to the tea shop. In his

deposition Janak Raj stated :-

"My shop is just in front of the power house.

About 1 year and 9 months back, it was about 11 or 11.30 A.M. I was at my shop. There were some customers. Accused was also there. One person came there who has his hairs cut but was having a turban on the head. He was forcibly putting the currency notes in the pocket of pant of Sohan Singh accused and the accused was resisting, with his both hands. In the meanwhile the police came there in plain cloths. The currency notes were in the hands of that sikh gentleman. The police took the accused with them along with that man. The notes were taken by the police from that sikh gentleman."

Strangely enough he was not cross-examined on the correctness of the

said statements. Only three suggestions were given to him (i) that he had

not narrated the incident to any respectable person till that day; (ii) that he

had not made any complaint about the high handedness of the police; and

(iii) that he was falsely deposing.

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14. Another defence witness who was examined on behalf of the

respondent was Lakhbir Singh. He was a witness to the occurrence which is

said to have taken place in the morning of 22nd November, 1988. According

to the said witness when the respondent refused to grant electric connection

out of turn, he heard exchanges of hot words and a threat was made to the

accused by a person that he would teach him a lesson.

15. Complainant, PW-5, in his evidence categorically stated that although

he had visited the office of the Board at Kotkapura, which is at a distance of

34-35 kms,, and met the respondent number of times but the demand of

money was made for the first time on 22nd December,1988. He accepted that

Sarwan Singh was not with him on earlier occasions.. Sarwan Singh is not a

resident of the same village. His village is situated at a distance of 1 = kms.

from his village. Although he sought to offer an explanation that both he

and Sarwan Singh had gone to enquire about the price of Narma crop, he

could not name the commission agent through whom he sells the agricultural

product. No plausible explanation had been furnished as to why PW-6

Sarwan Singh had accompanied the complainant in the afternoon.

16. We have noticed hereinbefore that in the matter of grant of electric

connection on out of turn where a seniority list has been prepared, the

1 0 respondent had no role to play. Moreoever, connection could have been

granted only after installation of transfer, which was within the exclusive

domain of the higher authorities of the Board.

17. It is in that view of the matter the evidence of an independent witness

was crucial. Indrajit Singh was an officer working in the Treasury

Department. It is ordinarily not expected that a government servant would

be won over so easily.

The High Court, as noticed hereinbefore, upon consideration of the

materials brought by the prosecution has also found serious discrepancies in

regard to the events taken place prior to the raid. Furthermore the learned

Special Judge failed to take into consideration the effect of deposition of

PW-9 Gurcharan Singh as also the defence witnesses. We have noticed

hereinbefore that DW-1 Janak Raj had not been cross-examined at all.

Except giving him some suggestions, as noticed above, no question was put

to him to discredit his evidence. The prosecution has also not been able to

establish that any demand had been made by the respondent. Evidence of

PW-9, Gurcharan Singh, to the effect that the respondent had no role to play

in the matter, thus assumes significance.

1 1 The view taken by the High Court, therefore, in our opinion, was a

plausible view. It is now well settled that if two views are possible, this

court, ordinarily, in exercise of its jurisdiction under Article 136 of the

Constitution of India, would not interfere with the judgment of the High

Court. { See John K. John v. Tom Varghese, [ (2007) 12 SCC 714] and

State of Punjab v. Gurnam Kaur and others, [ 2009 (4) SCALE 343 ] }.

18. For the reasons aforementioned there is no merit in this appeal which

fails and is dismissed.

....................................J. [ S.B. Sinha ]

....................................J. [ Dr. Mukundakam Sharma ] New Delhi May 15, 2009

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