Sham Sunder, J.@mdashThis appeal, is directed, against the judgment of conviction dated 26.11.1996, and the order of sentence dated 28.11.1996, rendered by the Court of Special Judge, Ambala, vide which, it convicted the accused, for the offence, punishable u/s 7 of the Prevention of Corruption Act, and sentenced him, to undergo rigorous imprisonment, for six months, and to pay a fine of Rs. 5000/-, and in default thereof, to further undergo rigorous imprisonment for three months.
2. The gist of the prosecution case, is that, Vijay Kumar Talwar son of Siri Ram Talwar, r/o Jagad-hri, was running a cloth shop. The Haryana Financial Corporation, had advertised the sale of Pamco Industries, Plot No. 21, Industrial Estate, Yamuna Nagar, and tenders, had been invited, in this regard. The complainant also filled in the tender and enclosed Rs. 25,000/-, as an earnest money. The tenders were opened, on 20.03.1990. The tender of the complainant, was for Rs. 4,50,000/-, and it being the highest, was accepted. He had deposited Rs. 87,5000/-, Rs. 1,12,500/-, and Rs. 2,25,000/-, respectively, vide different drafts, with the Haryana Financial Corporation, Chandigarh. The last draft, was deposited, on 13.07.1990. Even after deposit of the entire amount, he did not get possession of the plot. In the first instance, when he visited the office of the Haryana Financial Corporation, H.C. Kakkar, accused, who was, at the relevant time, working as Assistant General Manager, met him, and assured him, that he would get his tender accepted. Thereafter, the complainant, had met the accused, on several occasions. Even two drafts, were also, handed over to the accused. When the complainant deposited the last draft, he had shown the receipt to the accused, who got drafted an appli-cation, from the complainant, for getting the delivery of possession. The accused had assured him that he would get possession, by an early date. However, the possession, was not delivered to the complainant.
3. On 20.07.1990, the complainant met the accused, who invited him, at his residence. The complainant met the accused, at his residence, where he demanded a sum of Rs. 10,000/-, as gratification, other than legal remuneration. However, the complainant, was not ready to pay gratification, other than legal remuneration, whereupon, the accused threatened him that, in case, the same, was not paid, he would not allow the possession, to be delivered. In these circumstances, the bargain was settled. Rs. 5,000/-, were to be paid, before the delivery of possession, whereas, the remaining amount of Rs. 5,000/-, was to be paid, after the delivery of possession. On 28.07.1990, the accused came to the shop of the complainant, and threatened him that if the amount was not paid, the possession of the plot, would not be delivered to him. The complainant agreed to visit the house of the accused on 01.08.1990, at about 8.30 AM, and hand over Rs. 5,000/-, to him, as gratification, other than legal remuneration. Since the complainant, did not want to pay gratification, other than legal remuneration, he approached Sh. Sham Lal Goel, Deputy Superintendent of Police (Vigilance), in his office, on 31.07.1990, and narrated the aforesaid facts, to him.
4. On 01.08.1990, Vijay Kumar Talwar, complainant, handed over ten currency notes of the denomination of Rs. 500/- each, to Sh. Sham Lal Goel, the numbers whereof, were noted down, by him. Vikas Gupta son of Som Parkash Gupta, also accompanied the complainant at that time. The currency notes, were treated with phenol-phthalein powder, and the same were returned to the complainant, by Sh. Sham Lal Goel, after putting his initial, on the same. Personal search of the complainant, was conducted, and nothing was left with him. The complainant was instructed, to hand over Rs, 5000/-, as gratification, other than legal remuneration, to the accused, on demand, and Vikas Gupta, who was appointed as shadow witness, was instructed, to give the requisite signal, to the remaining members of the raiding party, consisting of Sham Lal, Deputy Superintendent of Police (Vigilance), and other Police officials. Shri S.K. Joshi, Sub Divisional Magistrate, Panchkula, was also joined, in the raiding party. Thereafter, the raiding party, went to the house of the accused, and concealed its presence.
5. The complainant handed over Rs. 5000/-, as gratification, other than legal remuneration, to the accused on demand. After receiving the requisite signal, from the shadow witness, the raiding part)'', reached the spot, and apprehended the accused. The hands of the accused were got washed, in the solution, which turned into pink. The hand-wash of the accused, was put into two separate nips, sealed separately, with the seal, bearing impression SL''. Thereafter, the search of the accused, was carried out, as a result whereof, ten currency notes of the denomination of Rs. 500/- each, were recovered, from the front pocket of the shirt, worn by him. On comparison, the numbers of the tainted currency notes, tallied with numbers, already noted down, before conducting the raid. The currency notes were sealed, and taken into possession, vide a separate memo. Thereafter, the shirt of the accused, was taken off, and the pocket from which the tainted currency notes were recovered, was washed, in a separate solution of sodium carbonate, as a result whereof, it turned into pink. The pocket-wash, was put into two separate nips, duly sealed, and taken into possession. The hands of Vijay Kumar Talwar, complainant, were also got washed, in a freshly prepared solution of sodium carbonate, as a result whereof, it turned into pinkish. The solution was put into two separate nips and sealed. The seal bearing impression ''SL'', was handed over to S.K. Joshi, the then Sub Divisional Magistrate. The accused was arrested. During the course of investigation, the sealed parcels aforesaid, were sent to the Forensic Science Laboratory, Madhuban, which gave the positive results. Sanction PB, for launching prosecution of the accused, was accorded by the Managing Director of the Haryana Financial Corporation. After the completion of investigation, the accused was challaned.
6. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 7 and 13 of the Prevention of Corruption Act, 1988, was framed against the accused which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial.
7. The prosecution, in support of its case, examined Rajesh Kumar, draftsman (PW1), who prepared the site plan.
8. P.K. Kohli, Deputy General Manager, Haryana Financial Corporation, Head Office, Chandigarh (PW2), brought a copy of the tender Pl, dated 20.03.1990, regarding the auction of M/s Pamco Industries, as also the record, with regard to the copy of appointment letter of H.C. Kakkar, accused.
9. Swami Nath Yadav, Assistant Manager (PW3), identified the signatures of the Managing Director, Haryana Financial Corporation, on sanction PB.
10. Vijay Kumar, complainant (PW4), deposed with regard to the payment of gratification, other than legal remuneration, to the accused, as also, his apprehension, by the Police.
11. Ravi Kumar Azad, Deputy Superintendent of Police, Flying Squad, Hissar (PW5), recorded the statements of some of the witnesses.
12. Mr. S.K. Joshi, HCS, S.T.C., Chandigarh (PW6), is a witness, to the recovery. He was posted as Sub Divisional Magistrate, Panchkula, at the relevant time, when the raid was conducted.
13. Vikas Gupta (PW7), shadow witness, supported the statement of Vijay Kumar, in all material particulars.
14. Sham Lal Goyal, Superintendent of Police, Jind (PW8), Deputy Superintendent of Police (Vigilance Bureau), Haryana, at the relevant time, is the Investigating Officer, who conducted the investigation, and proved various documents.
15. The Public Prosecutor for the State, tendered into evidence, PR report of the Forensic Science Laboratory, and other documents. Thereafter, he closed the prosecution evidence.
16. The statement of the accused, u/s 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He admitted that he had been working as Assistant General Manager, in Haryana Financial Corporation, since 01.06.1983. He also admitted that initially, he was appointed as Financial Appraiser, in Haryana Financial Corporation. The remaining allegations, were denied, by him. He, however, took up the following plea:
It is a false case against me and it is the outcome of the bureaucratic arrogance of" Mr. Sudhir Verma and Sham Lal Goel who"conspired to get me ousted from my service as I was the most qualified person in the"Corporation. Mr. Sudhir Verma then"Additional General Manager, personally"dealt with this file. I never dealf with this file after 24.05.1990. The file remained in the personal custody of Sudhir Verma after"24.05.1990. Possession could be delivered"on telephone call from Mr. Sudhir Verma to Branch Manager, Yamuna Nagar. A letter"could also be written by Sudhir Vermra to"the Branch Manager for delivering the"possession. The entire sale consideration was paid by Vijay Kumar on 13.07.1990. The"Managing Director of the Corporation had"also written to Mr. Sudhir Verma, on"06.08.1990, as to why the possession was"not delivered and as to why he kept the file with him without any movement of the same"from 13.07.1990 to 01.08.1990. I am"innocent."
The accused also examined R.C. Sethi (DW1), in his defence. Thereafter, he closed the defence evidence.
17. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.
18. Feeling aggrieved, the instant appeal, was filed by the Appellant.
19. I have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
20. The Counsel for the Appellant, submitted that the trial Court, was wrong, in acting upon the unreliable evidence of the complainant, and the shadow witness, to come to the conclusion, that the prosecution had proved its case, against the accused, beyond a reasonable doubt. Vijay Kumar, PW-4, is the complainant. From his evidence, it was proved that, in the Month of March, 1990, a news, was published, in the newspapers, inviting tenders, for the auction of Pemco Industries Ltd., Yamunanagar, which was a dead unit, through the Haryana Financial Corporation. His evidence is further to the effect, that he filled the tender for Rs. 4= lacs, and enclosed with the same, a demand draft of Rs. 25,000/-. The tender furnished by him, was passed. It was further stated by him, that to complete 25 per cent of the total sale amount, he gave another demand draft, in the sum of Rs. 87,500/-, in the name of the Haryana Financial Corporation. It was further stated by him that he gave another demand draft to the Haryana Financial Corporation, in the sum of Rs. 1,12,500/-, after sometime. He also stated that the last draft, was given by him, at the Haryana Financial Corporation office, Yamunanagar, in the sum of Rs. 2,25,000/-. All the amounts, were credited into his account. The accused, was the dealing hand, in this case, being Assistant General Manager, Haryana Financial Corporation, Chandigarh. He approached the accused, in his office, and demanded the delivery of possession of plot sold, in his favour, because he had made full payment. The accused, told him, that he should give a sum of Rs. 10,000/-, to him (accused), for delivering possession, otherwise he would get his case spoiled. Earlier also, this plot was sold by Haryana Financial Corporation, by inviting tenders, but the purchaser, could not get the plot, as his case was spoiled. The complainant feared, that his case may also not be spoiled, in a similar fashion. The accused, told Vijay Kumar, to pay him, a sum of Rs. 5,000/-, before the delivery of possession of the plot, and the balance Rs. 5,000/-, after the delivery of possession. Vijay Kumar told Vikas Gupta, about this factum. On 01.08.1990, he alongwith Vikas Gupta, contacted Deputy Superintendent of Police, Vigilance, in Vigilance Office, Panchkula, situated near the office of the accused. He made statement, before the Police, narrating the aforesaid facts. A sum of Rs. 5,000/-, consisting of ten currency notes of Rs. 500/- each, was handed over, by the complainant, to the Deputy Superintendent of Police. Those currency notes were treated with phenol-phthalein powder, by the Deputy Superintendent of Police, and were also initialled, by him. Memo, in this regard, was prepared. A raiding party, was constituted. Vikas Gupta, was appointed, as shadow witness, and Mr. S.K. Joshi, HCS, Sub Divisional Magistrate, Panchkula, was also joined, in the raiding party. He further stated that, he was instructed by the Deputy Superintendent of Police, to go to the accused, at his house, as per pre- arrangement, and on demand, by him, pay the aforesaid tainted currency notes, to him. Vikas Gupta, shadow witness, was instructed, to give signal, to the Police party, after the amount, was paid by the complainant, to the accused. Thereafter, the complainant, and Vikas Gupta, reached the house of the accused, as per pre-arrangement, where he was found present. The complainant paid the aforesaid tainted currency notes, to the accused, on demand, which were put, by him, in the front pocket of his shirt, which he was wearing, at that time. Vikas Gupta, then gave the requisite signal, to the Police party. The Police party, reached there. A glass, containing plain water was fetched. The hands of the accused, were got washed therein, as a result whereof, the colour thereof, turned into pinkish. On search of the accused, tainted currency notes of Rs. 5,000/-, were recovered. The statement of Vijay Kumar, complainant, was duly corroborated by Vikas Gupta, and S.K. Joshi, prosecution witnesses, in all material particulars. Not only this, the ocular evidence, was also corroborated, through the handwash of the accused, which turned into pinkish, pocket-wash of the accused, which also turned into pinkish, and the recovery of tainted currency notes, from his pocket, which were a short-while ago, with the complainant. The evidence of the prosecution witnesses, was rightly found to be most reliable by the trial Court. Still further corroboration to the ocular version, was provided, through the report PR, of the Forensic Science Laboratory, Madhuban, Haryana, which found phenol- phthalein powder, on the tainted currency notes, and phenol phthalein and sodium bi-carbonate, in the handwash, as also in the pocket-wash of the accused. It is not that the ocular evidence of the complainant, and the shadow witness, should only be corroborated through the evidence of an independent witness. In Hans Raj v. State of Haryana (1997(3) RCR 427, the principle of law, laid down, was to the effect, that the chemical test is a corroborative piece of evidence. Even no explanation, was furnished by the accused, as to how, the solution, in which his hands were washed, and the solution, in which, the pocket of his shirt, was washed, turned into pinkish. Even no explanation was furnished by the accused, as to how, the tainted currency notes of Rs. 5000/-, reached the front pocket of his shirt, which were a short while ago, with the complainant. In
21. It was next submitted by the Counsel for the Appellant, that no independent witness, was joined and examined, and, as such, the evidence of the prosecution witnesses, was not sufficient, to bring home the guilt to the accused. He placed reliance on Tarlok Singh son of Inder Singh, Line Superintendent, Patiala v. The State of Punjab, 1983 RCR 382, in support of his contention. There is no rule of law, that the case of the prosecution, until and unless corroborated, through an independent witness, could not be acted upon. It is only, as a matter of caution, that the Courts, sometimes insist, on independent corroboration, to the evidence of the interested witnesses. During the course of his cross-examination Sham Lal Goyal, Superintendent of Police, who was the Deputy Superintendent of Police, at the relevant time, and the Investigating Officer, stated that the house of the accused, was located, in a densely populated locality. He further stated mat no person of the locality, had come to the house of the accused. He also stated that, he did not call any witness, from the public, from that locality. The mere fact that, no independent witness, was joined, by Sham Lal Goyal, Deputy Superintendent of Police, the Investigating Officer, at the relevant time, was not sufficient to throw away the case of the prosecution over-board. It is a matter of common experience, that the independent witnesses of the locality, hardly come forward, to join a raid, so as to avoid the wrath and displeasure of the accused. Since the evidence of the complainant namely Vijay Kumar, was duly corroborated by Vikas Gupta, shadow witness, Mr. S.K. Joshi, HCS, at the relevant time, Sub Divisional Magistrate, Panchkula, who appeared as PW6, and the circumstantial evidence, referred to above, non-joining and non-examining of an independent witness, did not at all cause any dent, in the prosecution story. The facts of Tarlok Singh''s case (supra), are clearly distinguishable, from the facts of the instant case. In Tarlok Singh''s case (supra), it was held, that the statement of the complainant alone, without any independent corroboration, was not sufficient, to bring home the guilt to the accused. The instant case, is not based, on the statement of the complainant alone. In the instant case, as stated above, the statement of the complainant, was duly corroborated, through the evidence of other witnesses, as also the strong circumstantial evidence. In this view of the matter, no help, can be drawn, by the Counsel for the Appellant, from the aforesaid case. The submission of the Counsel for the Appellant, being without merit, must fail, and the same stands rejected.
22. It was next submitted by the Counsel for the Appellant, that the sanction PB, was invalid, as it was accorded, without application of mind, to the facts and circumstances of the case. The submission of the Counsel for the Appellant, in this regard, also does not appear to be correct. The perusal of exhibit PB, the sanction, accorded by the competent authority, clearly goes to show, that the relevant file, was produced, before it. It was only after going through the same, and applying mind, to the facts and circumstances of the case, that the competent authority, came to the conclusion, that it was a fit case, in which, sanction for launching prosecution, under Sections 7 and (13)(1) of the Prevention of Corruption Act, 1988, should be accorded. Accordingly, the competent authority, accorded sanction exhibit PB. It, therefore, could not be said, that the sanction exhibit PB, was the result of non-application of mind, to the facts and circumstances of the case. In
23. It was next submitted by the Counsel for the Appellant, that the Appellant was not in a capacity to show any, favour, to the complainant, and, as such, the question of demand of gratification, other than legal remuneration, by him, did not at all arise. The submission of the Counsel for the Appellant, in this regard, also does not appear to be correct. The tenders were called, by the Haryana Financial Corporation, for auction of Pemco Industries Ltd., Yamu-nanagar, which was a dead unit. The tender of the complainant, was accepted, and he deposited the entire sale consideration. Only the delivery of possession of the plot, which was sold, in his favour, was to be given, to him. The accused, was the Assistant General Manager, at the relevant time, and the complainant approached him, a number of times, to deliver him the possession of the plot, which was sold, in his favour. It was, on that account, when he met the accused that he made a demand of Rs. 10,000/-, as gratification, other than legal remuneration, from the complainant, for showing him favour, in the matter of delivery of possession of plot. It, therefore, could not be said, that the accused, was not in a position, to show, any favour to the complainant. The accused, therefore, demanded gratification, other than legal remuneration, as a motive or reward, so as to show favour, to the complainant, in the matter of delivery of possession of the plot sold, in his favour. In this view of the matter, the submission of the Counsel for the Appellant, being devoid of merit, must fail, and the same stands rejected.
24. The Counsel for the Respondent, submitted that the statutory presumption u/s 20(1) of the Prevention of Corruption Act, 1988, could be drawn, against the accused, as the tainted currency notes were recovered from the front pocket of the shirt worn by him, and it was for him, to explain, as to how, the same came into his possession, which were a short while ago, in the possession of the complainant. He further submitted that the accused failed to furnish any explanation, in this regard. The submission of the Counsel for the Respondent, in this regard, appears to be correct. In
The degree and the character of the burden of proof which Section 4(1) casts on an accused person, to rebut the presumption raised there-under, cannot be equated with the degree and character of proof, which u/s 101'', Evidence Act, rests on the prosecution. While the mere plausibility of an explanation, given by the accused in his examination u/s 342 Code of Criminal Procedure, may not be enough, the burden on him to negate the presumption may stand discharged if the effect of the material brought, on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption, by showing a mere preponderance of probability, in his favour; it is not necessary for him to establish his case, beyond a reasonable doubt. AIR 1974. S.C. 773, followed.
The sole purpose of the presumption u/s 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences, u/s 5(1)and (2) of the Prevention of Corruption Act and Section 161 Penal Code. The presumption, therefore, can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is in consistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy, it cannot be rejected out of hand as still-born.
The plain reading of the principle of law, laid down, in the aforesaid case, reveals that the accused can rebut such presumption, by leading evidence, or from the evidence of the prosecution witnesses. It is, no doubt, not necessary for him, to establish his case, to rebut such statutory presumption, operating against him, u/s 4(1) of the Act (now u/s 20 (1) of the Prevention of Corruption Act, 1988), beyond a reasonable doubt. The demand and acceptance of gratification, other than legal remuneration, by the accused, was proved from the cogent, and convincing evidence, produced by the prosecution. The statutory presumption, operating u/s 20(1) of the Prevention of Corruption Act, 1988, remained unrebutted. The unrebutted statutory presumption strengthened the truthfulness of the prosecution case.
25. The defence, set up by the accused, was to the effect, mat one Sudhir Verma, was brought to Haryana Financial Corporation, from the banking company, directly as Assistant General Manager, on deputation, for one year, but he was designated, as Deputy General Manager, and made his boss, whereas, he was made junior to him. He further stated that Mr. R.K. Chhiber, Senior Deputy General Manager, challanged that order. He further stated that, he instigated R.K. Chhiber, to file writ, in the High Court, and, that was why, Sudhir Verma, was annoyed, with him, and involved him, in this case. He further stated that, it was Sudhir Verma, who was to deliver the possession, as per the orders of the Managing Director. He also stated that the Managing Director of the Company, had also written a letter, to Sudhir Verma, on 06.08.1990, as to why, the possession of the plot, had not been delivered, and as to why he kept the file, with him, from 13.07.1990 to 01.08.1990. It may be stated here that, if any, writ was fried by R.K. Chhiber, challenging the order of appointment of Sudhir Verma, then he could be said to have some grouse, against R.K. Chhiber, and not against the accused. In those circumstances, Sudhir Verma, could be expected to involve R.K. Chhiber, in the instant case. Even if, the file was kept by Sudhir Verma, for some time, that did not mean, that he falsely involved the accused, in the instant case. It was the accused, who demanded, and accepted gratification, other than legal remuneration, from the complainant, for showing him favour, regarding the delivery of possession of the plot, which was sold, in his favour. The recovery of tainted currency notes, was effected, from the accused. The hand-wash and the pocket-wash, in which, the tainted currency notes, were put by the accused, also gave the positive results. So, whether the file, was kept by Sudhir Verma, for sometime, or not, could not absolve the accused of his criminal liability. The defence of the accused, being unreliable, was rightly discarded by the Court below.
26. The Counsel for the Appellant, last of all, submitted that the Appellant has been facing the criminal proceedings, for the last 19 years, when the case was registered, against him. He further submitted that the Appellant, must have undergone a lot of mental agony, and physical pain. He further submitted that lenient view, be taken, by reducing his sentence. The perusal of the trial Court judgment reveals that, already the minimum sentence, provided by the Act, for the offence, punishable u/s 7 of the Prevention of Corruption Act, was awarded to the accused. Under these circumstances, the same, cannot be reduced. The submission of the Counsel for the Appellant, being without merit, must fail, and the same stands rejected.
27. No other point, was urged, by the Counsel for the parties.
28. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be up held.
29. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction and the order of sentence, rendered by the trial Court, are upheld.
30. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months.
31. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.
32. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action.
