T.P.S. Mann, J.@mdashBy this common judgment, I intend to dispose of the present appeal as well as Criminal Appeal No. 162-DBA of 1992, which had been filed by the State of Punjab against the acquittal of Om Parkash Sharma accused, as they arise out of judgment and order passed by Special Judge, Hoshiarpur on 08.11.1991.
2. Both the accused, namely, Om Parkash son of Shiv Saran Dass and Om Parkash Sharma son of Amin Lal Sharma, were tried u/s 5(2) of the Prevention of Corruption Act, 1947 and Section 161 IPC. Vide impugned judgment, the trial Court acquitted Om Parkash Sharma of the charges against him. However, Om Parkash son of Shiv Saran Dass was held guilty u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 as well as Section 161, IPC. He was awarded RI for two years and to pay a fine of Rs.500/-, failing which to further undergo RI for three months on the first count and sentence of two years and to pay a fine of Rs.500/-, failing which to further undergo RI for three months on the second. However, the substantive sentences of imprisonment were ordered to run concurrently.
3. Aggrieved of the same, Om Parkash son of Shiv Saran Dass filed the present appeal, while State of Punjab filed Criminal Appeal No. 162-DBA of 1992 against the acquittal of Om Parkash Sharma accused.
4. At the relevant time, Om Parkash Sharma was posted as Defence Pension Disbursing Officer, Hoshiarpur, while Om Parkash son of Shiv Saran Dass as a clerk in his office. Beant Singh, who used to draw pension from the Army, passed away on 02.06.1988. His widow Swaran Kaur applied for receiving the pensionary benefits. She along with her son Sukhwinder Singh, met the officials of Punjab and Sind Bank, Mahilpur, where Beant Singh was having the pension account. They enquired from there about receiving the life time arrears payable to Beant Singh. The bank authorities told them to contact the Defence Pension Disbursing Officer, Hoshiarpur. Accordingly, they went to the Defence Pension Disbursing Office, Hoshiarpur (for short ''DPDO'') and came across Om Parkash, Clerk, who gave them a letter to be delivered to the bank authorities at Mahilpur. Pursuant thereto, the bank issued a draft of Rs.981/- which was handed over by Sukhwinder Singh complainant to Om Parkash, Clerk. Letter Ex.PJ was then sent by DPDO to the bank for returning the amount of pension lying undisbursed for the month of May, 1988 for payment to the legal heirs of the pensioner. This time again, the bank issued a draft for Rs.424/-, which was deposited by the complainant in the office of DPDO. It was alleged that on 08.08.1988, when the complainant approached Om Parkash, Clerk for issuance of the cheque in respect of the pensionary benefits, the latter demanded a sum of Rs.300/- as bribe and finally the deal was settled at Rs.200/-. Om Parkash, Clerk told Sukhwinder Singh that out of the amount of Rs.200/- to be received by him as bribe, he would pay a sum of Rs.50/- to Om Parkash Sharma for getting the cheque signed from him. Om Parkash, Clerk advised the complainant to come to his office along with his mother on 10.08.1988 for collecting the cheque for Rs.1,199/- after paying the agreed amount of Rs.200/-. According to the complainant, he was not willing to pay the bribe. While accompanied by Surinderpal Singh, the complainant appeared before Inspector Udham Singh of the Vigilance Bureau, Hoshiarpur and apprised him about the demand of bribe. It was, thus, decided that a trap would be laid to apprehend the accused. The complainant produced four currency notes of the denomination of Rs.50/''- each, which were then treated by Inspector Udham Singh with phenolphthalein powder. The complainant was instructed to hand over the said notes to Om Parkas, Clerk on demand. Surinderpal Singh, who had accompanied the complainant to the Vigilance Office was deputed to act as a shadow witness. Demonstration memo regarding the reaction of phenolphthalein powder when coming into contact with sodium carbonate, was prepared.
5. As per the arrangement, the complainant, while accompanied by his mother, contacted Om Parkash, Clerk, who enquired from the complainant as to whether he had brought the money. To this, the complainant replied in the affirmative. He asked the accused to give him the cheque. However, the accused insisted that he should be paid bribe money first so that out of the same he could pay Rs.50/- to the officer for obtaining his signatures on the cheque. On this, the complainant handed over the tainted money to Om Parkash, Clerk, who put three currency notes of Rs.50/- in the left side pocket of his pant, while retaining the fourth note in his hand. Om Parkash, Clerk then went to the office of Om Parkash Sharma and returned with a cheque for Rs.1,199/-. At this Surinderpal Singh, who was acting as a shadow witness, gave the pre-arranged signal, which brought the raiding party to the spot. The search of Om Parkash, Clerk led to the recovery of three currency notes Exs.P1 to P3 from the left pocket of his pant. Their numbers were found to tally with those mentioned in memo, prepared earlier. Similarly, Om Parkash Sharma accused was summoned through ASI Balnam Kumar and his search also yielded currency note Ex.P4 from the left front pocket of his bush-shirt. The number of the said currency note also tallied with the number noted in the memo earlier prepared. The hands of both the accused were subjected to wash in separate glass tumblers containing solution of sodium carbonate with water. The colour of the solution turned pink on both the occasions. The pocket of the pant, worn by Om Parkash, Clerk and that of the bush-shirt worn by Om Parkash Sharma accused, also resulted into similar change of colour to pinkish. The cheque, which had been given by Om Parkash, Clerk, was produced by the complainant, photocopy of which was retained by Inspector Udham Singh and the original thereafter returned to the complainant for encashment.
6. On the basis of the aforementioned allegations, both the accused were tried by the lower Court. During the recording of its evidence, the prosecution examined PS.Mehta, Accounts Officer as PW1, Joginder Kapoor, Personal Assistant as PW2. Chatru Ram as PW3, MHC Rajinder Kumar as PW4, Constable Malkiat Singh as PW5, Constable Karnail Singh as PW6, Sukhwinder Singh complainant as PW7, Surinderpal Singh as PW8, Pritam Dass as PW9 and Inspector Udham Singh as PW10. Report Ex.PEE of Forensic Science Laboratory, Chandigarh was also tendered into evidence.
7. When the prosecution case was put to the accused, both the accused denied its correctness and stated that they had been falsely implicated. Om Parkash, Clerk took up the following pleas:
I am innocent. Sukhwinder Singh had quarreled with me on previous occasion and had threatened me to falsely implicate me. On 10.9.1988,I was in my office when he came there and again quarrelled with me. In the meantime, DPDO also came there to try to pacify the matter, but in the meantime, the Vigilance Inspector along with other official came there, who took us both to his office where we were falsely implicated in the present case.
Similarly, Om Parkash Sharma stated as under:
I am innocent. A day earlier that is on 09.08.1988,I had given Rs.50/- to my co-accused Om Parkash, Clerk to manage some articles for me from the canteen. On coming to the office on 10.08.1988 in the morning, Om Parkash, Clerk told me that he could not manage the articles for me from the army canteen and he returned the currency note of Rs.50/- (Ex.P4) to me and I placed the same in the front pocket of my bush-shirt. After some time, I heard noise in the office, so I went to the room of Om Prakash, Clerk, where the raiding party was present. The Vigilance Inspector recovered the currency note Ex.P4 from the left front pocket of my bush-shirt Ex.P10. I and my co-accused were taken to the office of the Vigilance Inspector, Hoshiarpur where all the formalities were done. I have been falsely implicated in the case and the statement Ex.PH was also prepared in the office by the Inspector when we had been taken to his office''''.
8. When called upon to lead evidence, accused Om Prakash, clerk appeared as his own witness. The accused also examined Gurdas Ram DW2.
9. After holding that there was neither any demand by Om Prakash Sharma nor any acceptance as such of the bribe money from the complainant, the trial Court acquitted him of the charges against him. However, the prosecution case was found to have been proved against Om Prakash, clerk and he was accordingly, convicted and sentenced as mentioned above.
10. Learned counsel for the appellant submitted that the prosecution relied upon the testimonies of Sukhwinder Singh. PW7 and Surinderpal Singh PW8. They were residents of different villages but working at one place, i.e. Bus Adda, Bahowal. Though the alleged incident of demand and acceptance of the bribe had taken place in the office of DPDO, yet no official from the said office was associated with the same. So much so, that even Swaran Kaur, mother of Sukhwinder Singh complainant PW7 was not examined. It was also submitted that it was not the duty of the appellant to issue the cheque which had been issued in fact by Om Prakash accused. Finally, it was argued that there was no corroboration to the case of the prosecution and, therefore, the appellant should be acquitted of the charges against him. In the alternative, it was prayed that the appellant had already been dismissed from service and the incident relates to the year 1988, therefore, the sentences of imprisonment imposed upon the appellant be reduced to that already undergone by him.
11. Learned State counsel has submitted that the prosecution led sufficient evidence to prove its case against the appellant and, therefore, the appeal be dismissed.
12.I have heard learned counsel for the parties, and gone through the evidence.
13. The testimonies of Sukhwinder Singh PW7 and Surinderpal Singh PW8, when read in entirety, show that it was the appellant who initially demanded Rs.300/- as bribe from the complainant for issuing the cheque and the amount was finally settled at Rs.200/-. The matter was thereafter reported by the complainant to Inspector Udham Singh, who made necessary arrangements to lay a strap for apprehending the accused. When the complainant along with his mother Swaran Kaur and Surinderpal Singh PW8 went to Om Prakash, clerk and asked him to give him the cheque, the latter made a demand for payment of Rs.200/- as bribe as agreed earlier. It was only when the tainted money amounting to Rs.200/- was paid by the complainant to Om Prakash, Clerk that he went out and returned after some time with the cheque. Once this happened, a signal was given by Surinderpal Singh PW8, who was acting as a shadow witness. This brought the raiding party to the spot. Om Prakash, Clerk was apprehended and the search of his pant led to recovery of three currency notes of Rs.50/- each. Om Prakash Sharma, the other accused, was also called to that very place where his bush-shirt pocket was searched which led to the recovery of fourth currency note of Rs.50/-. The hands of both the accused were separately dipped in glass tumbler containing solution of sodium carbonate and water. The colour of the solution changed to pink. The pockets of both the accused were also separately dipped in a similar solution which also produced similar results. Although, both Sukhwinder Singh PW7 and Surinderpal Singh PW8, were thoroughly cross-examined but no material could be brought out by the defence from which it could be said that these witnesses were telling lies. In fact, their testimonies have a ring of truth around them. During the arguments, learned counsel pointed out certain contradictions and discrepancies in their testimonies but to my mind, these can be easily termed as minor. The prosecution case cannot be dislodged on their basis. Such like contradictions and discrepancies were bound to occur in the testimonies of the witnesses, especially when they are examined after about three years of the incident.
14. Smt.Swaran Kaur, mother of complainant Sukhwinder Singh, would have neither improved the prosecution case nor belied the same in case of her appearance as a witness before the trial Court. She was expected to toe the line of her son Sukhwinder Singh PW7. Further, though both Sukhwinder Singh PW7 and Surinderpal Singh PW8, are running their own respective businesses at Bus Adda of Bahowal yet that by itself is not sufficient to hold that Surinderpal Singh PW8 was under the influence of the complainant. The defence did not suggest to Surinderpal Singh at any stage that he was thick with the complainant. On the other hand Surinderpal Singh started that in the evening of 09.08.1988, the complainant told him that the accused was demanding bribe and therefore he should be got entrapped. Apart from that there is no other evidence of any close association of Surinderpal Singh with the complainant. Even otherwise, both these witnesses were not shown to be inimical towards the appellant.
15. The defence did not ask any question from Inspector Udham Singh PW10 about the presence of any other official of DPDO at the time of the demand and acceptance of bribe and thereafter recovery of the tainted money. All that was suggested to the prosecution witnesses was that the accused were taken to the Vigilance Bureau and thereafter falsely implicated in the case. If nothing has come on the record to show the presence of other officials, the prosecution cannot be expected to produce any such person in support of its case.
16. The recovery of currency notes and the washing of the hands resulting into turning of the solution into pink lends independent corroboration to the prosecution case. Even the pocket wash also corroborated the fact that the money was first received by the accused and thereafter kept in the pocket.
17. Though it was not the duty of the appellant to issue the cheque but it was he who demanded the bribe from the complainant and only after receiving the same, he went to his co-accused from where he brought the cheque of Rs.1,199/-. Thus, no benefit can be extended to the appellant.
18. In view of the above, the trial Court convicted the appellant for the two offences as stated above.
19. Coming to the question of sentence, it may be noticed that the incident relates to the year 1988. The appellant remained in jail for a couple of days during the trial. On account of his involvement and subsequent finding of conviction recorded by the trial Court the appellant has already been dismissed from service. Apart from that, he is facing the agony of criminal prosecution for the last about 19 years.
20 In
Now coming to the question of sentence, it is a very old case and the occurrence itself is said to have taken place in the year 1979. All these years the accused has undergone the agony of criminal proceedings. He has lost his job and we are told that he has a large family to support. In similar circumstances, in
21. In B.C.Goswami v. Delhi Administration Hon''ble Supreme Court held that both too lenient as well as too harsh sentences lose their efficaciousness. While one does not deter, the other may frustrate thereby making the offender a hardened criminal. After upholding the conviction of the accused u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and noticing that though the said offence prescribed minimum sentence of RI for one year besides the fine, the sentence of imprisonment could be for a lesser period but in that event the Court had to assign special reasons, which must be recorded in writing. Finally after observing that sending the accused back to jail after seven years of the agony and harassment of the proceedings when he was also going to lose his job and had to earn a living for himself and for his family members and for those dependent on him, the Court reduced the sentence of imprisonment to that already undergone, but increased the sentence of fine. The said conclusion is as follows:
As already observed, the appellant''s conviction u/s 161, IPC, was rightly upheld by the High Court and there is no cogent ground made out for our interference with that conviction. The sentence of imprisonment imposed by the High Court for both these offences is one year and this sentence is to run concurrently. The only question which arises is that u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act the minimum sentence prescribed is rigorous imprisonment for one year and there must also be imposition of fine. The sentence of imprisonment can be for a lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence. It is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the agony and harassment of these proceedings when he is also going to lose his job and has to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine of Rs.200/- to Rs.400/-. Period of imprisonment in case of default will remain the same.
22. In view of the above, ends of justice would be amply met if the sentences of imprisonment imposed upon the appellant for the two offences are reduced to that already undergone by him.
23. Accordingly, the conviction of the appellant for the offences u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act and Section 161, IPC are maintained. However, the sentences of imprisonment as awarded by the trial Court are reduced to already undergone. The fine imposed upon the appellant for both the offences along with default clauses is maintained.
24. Coming to the appeal filed by the State of Punjab against the acquittal of Om Parkash Sharma, it may be seen that neither the said accused demanded any bribe from the complainant Sukhwinder Pal Singh or his mother Swaran Kaur nor received/accepted the same from them. He gave an explanation about the recovery of one currency note of the denomination of Rs.50/- from him. His explanation was duly accepted by the trial Court. There is no material on the file from which it could be deducted that the said explanation of Om Parkash Sharma accused was not tenable.
Accordingly, there is no merit in the appeal filed by the State of Punjab against the acquittal of Om Parkash Sharma accused and is therefore, dismissed.
Both the appeals are, accordingly, disposed of.
