Allowed

Lovely Kumar v. State of Pb.

Punjab & Haryana HC15 May 2012CRA-S/1411/2004

Case brief

AI extract

What is this about?

Appeal by Lovely Kumar challenging conviction and sentence for corruption under Section 7 and 13 of the Prevention of Corruption Act. The single judge acquitted the appellant due to failed prosecution evidence, contradictory witness statements, union rivalry, and illegal search.

What did the court decide?

Appeal allowed, judgment of conviction and order on sentence set aside, appellant acquitted of the charges.

Lovely Kumar Vs State of Pb. — Corruption | Punjab & Haryana HC (2012)

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Crl. Appeal No. 1411-SB of 2004

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Appeal No. 1411-SB of 2004 (O&M) Date of Decision: May 30^th , 2012

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Lovely Kumar .... Appellant

Versus

State of Punjab

.... Respondent

CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK

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1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not?

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3.Whether the judgment should be reported in the Digest?

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Present Mr. Barjesh Mittal, Advocate, for the appellant.

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Mr. Amandeep Singh Rai, DAG, Punjab, for the State.

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VIJENDER SINGH MALIK, J.

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This is an appeal brought by Lovely Kumar against the judgment of his conviction for an offence punishable under sections 7 and 13 of the Prevention of Corruption Act, 1988 (for short, “the Act”) dated 5.7.2004 as also the order on sentence of the same date vide which the following sentence has been awarded to the convict by Special

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Judge, Amritsar-

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Offence	Sentence	Fine	In default
u/s 7 PC Act	RI for 2 years	`1000/-	RI for 1 month
u/s 13 PC Act.	RI for 2 years	`1000/-	RI for 1 month

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Both the sentences were ordered to run concurrently.

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Crl. Appeal No. 1411-SB of 2004

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The prosecution case, as unfolded in the judgment under appeal, is as under:-

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Achhar Singh, the complainant has been working as a peon in the office of Principal, Medical College, Amritsar. He required some money for domestic use. He made an application for withdrawal of 6,000/- from his General Provident Fund (for short “GPF”) account. He met Lovely Kumar, who was working as a Clerk dealing with the GPF of class IV employees, in this regard. Lovely Kumar made a demand of bribe in a sum of 2,000/- from the complainant for processing his case. Though, the complainant expressed his inability to pay this amount being a poor person, yet on Lovely Kumar telling him that the amount would not be paid to him if he did not pay the bribe, the complainant agreed to pay the amount. He told Lovely Kumar that he would pay the amount demanded as bribe the moment he delivered him the cheque of the advance. The complainant was called by Lovely Kumar to his office on 29.8.2001. He told the complainant that sanction for withdrawal of 6,000/- from GPF account of the complainant has been received and he demanded 2,000/- as bribe. The complainant told him that he did not have the money with him on that day and promised the said amount on the next day. The accused obtained signatures of the complainant at two places. The complainant alongwith Jagdish visited Vigilance Bureau, Amritsar on 30.8.2001 and made a statement in this regard to DSP Ranvir Singh. The complainant had handed over one currency note of the denomination of 500/- and 15 currency notes of the denomination of 100/- to Ranvir Singh, DSP. Phenolphthalein powder was applied to

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Crl. Appeal No. 1411-SB of 2004

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those currency notes and after noting down the serial numbers of the currency notes, the same were handed over to the complainant. The complainant was told not to shake hands with the accused. Memo of handing over the currency notes was prepared. Jagdish was told to act as a shadow witness. He was instructed to overhear the conversation between the complainant and the accused. Manwinder Singh, Research Officer and Dev Raj, Junior Assistant in the office of Irrigation and Power Research Institute, Amritsar were joined in the trap party as independent witnesses. The demonstration of the reaction of phenolphthalein powder with the solution of sodium carbonate was shown to the complainant and other witnesses. The raiding party boarded a jeep and reached a place near the Medical College, Amritsar. Issuing appropriate instructions to the complainant and the shadow witness, they were sent to Medical College, Amritsar and the remaining members of the raiding party remained outside. After about 10 minutes, the complainant and the shadow witness came out and told Ranvir Singh, DSP that the accused had told them to reach State Bank of India, Ghala Mala Chowk, Majitha Road, Amritsar and that he would follow them shortly. All the members of the raiding party reached State Bank of India, Ghala Mala Chowk, Majitha Road, Amritsar. The complainant and the shadow witness were again reminded about their role and they were sent to the bank. After sometime, accused came there on a scooter and went inside the bank. Shortly thereafter, the shadow witness came out and gave the predetermined signal to the raiding party. Ranvir Singh, DSP alongwith other members of the raiding party entered the bank premises and

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Crl. Appeal No. 1411-SB of 2004

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overpowered the accused. The DSP disclosed his identity to the accused. The accused admitted having received the bribe money from the complainant. The hands of the accused were dipped in a solution of sodium carbonate and its colour turned pink. The said pink hand-wash of the accused was put in a nip and was sealed with the seal bearing impression 'RS'. The tainted money was recovered from the right side pocket of the pant put on by the accused. The same were taken into possession by way of separate recovery memo. Personal search of the accused was then conducted. The accused was asked to take off the pant, the right side pocket of which was dipped in the sodium carbonate solution, the colour of which turned pink. This pocket wash was put in another nip, which was sealed with the same seal. Cheque of ` 6,000/was taken from the complainant and was recovered by way of a recovery memo. The scooter of the accused, its registration certificate and three passbooks were taken into possession. DSP prepared a rough site plan of the place of recovery. Thereafter the raiding party reached Medical College, Amritsar and seized the relevant record from there. The nips were sent to the Forensic Science Laboratory, Chandigarh. After receipt of the report of Forensic Science Laboratory and obtaining sanction to prosecute the accused from the competent authority, challan was prepared.

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Vide order dated 3.4.2002, learned Special Judge, Amritsar framed charge against the accused for an offence punishable under section 7 and 13(2) of the Act. The accused pleaded not guilty and claimed trial.

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Crl. Appeal No. 1411-SB of 2004

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At the trial, the prosecution had examined eleven witnesses in all. Thereafter, the accused was examined in terms of section 313 Cr.P.C. during which the incriminating prosecution evidence was put to him in the shape of questions. Besides denying the truth of the prosecution evidence put to him in the shape of questions, the accused had claimed that he was innocent and that nothing was recovered from him. He had added that he was falsely involved in the case due to interrivalry of the unions of his office. Though, the accused desired to lead evidence in his defence, yet he did not lead any such evidence and closed the same.

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Hearing learned Additional Public Prosecutor for the State and learned counsel for the defence, learned Special Judge, Amritsar found the accused guilty for the offence punishable under sections 7 and 13(2) of the Act vide judgment dated 5.7.2004. Hearing on quantum of sentence was given on the same day and the sentence detailed as above was awarded to the convict.

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Aggrieved by the aforesaid judgment of conviction and order on sentence, the convict has brought this appeal.

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I have heard Mr. Barjesh Mittal, learned counsel for the appellant and Mr. Amandeep Singh Rai, learned Deputy Advocate General, Punjab for the respondent. I have gone through the record carefully.

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Learned counsel for the appellant has submitted that the role of the appellant in grant of G.P.F. advance to Achhar Singh was only of processing the case. According to him, Achhar Singh, complainant

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Crl. Appeal No. 1411-SB of 2004

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applied for GPF advance in a sum of 6,000/- and he claims that the appellant demanded a sum of 2,000/- from him by way of bribe. He has further submitted that the demand by the appellant of bribe is not proved in this case because the shadow witness, named, Jagdish has failed to support the prosecution case. According to him, Jagdish is the person who is usually available in the courts at Amritsar and, therefore, he is easily available to the police. He has submitted that the failure of Jagdish to support the prosecution case would show that he was never associated in the raiding party.

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Learned counsel for the appellant has further submitted that Dr. Manwinder Singh, who is said to have been associated in the raiding party from Irrigation and Power Research Institute, Amritsar has made a contradictory statement. According to him, he joined the raiding party at Vigilance Bureau on 11.9.2001 while the raid was conducted on 30.8.2001. He has further submitted that he also says that he reached the Vigilance Bureau at 9.30 AM and found Achhar Singh present there. According to him, this statement is in contradiction with the statement of Achhar Singh (PW-6), who states that he reached Vigilance Bureau at 10.00 AM.

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Learned counsel for the appellant has further submitted that the prosecution has examined Krishan Lal, a cashier in the office of Principal, Medical College, Amritsar as PW-5 who has stated that on 29.8.2001, a cheque of the GPF advance of Achhar Singh was ready and was offered to Achhar Singh, but he refused to take it and asked him to hand the same over to the appellant, Lovely Kumar. According to him,

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Crl. Appeal No. 1411-SB of 2004

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when this cheque was available to him on 29.8.2001, there was no reason for the complainant to have asked the cheque to be given to Lovely Kumar and then to contact the Vigilance Bureau on the next day. He has further submitted that as admitted by Achhar Singh (PW-6), the class III and class IV employees unions of the medical college were having differences and while Lovely Kumar, the appellant belonged to class III employees union, the complainant belonged to class IV employees union and that the raid was got conducted only with a view to settle scores with Lovely Kumar on account of the aforesaid differences.

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Learned counsel for the appellant has further submitted that there is a gross anomaly in this case on the question as to who conducted the search and whether the person conducting search offered his search to the appellant before conducting the same. Dr. Manwinder Singh (PW-2) has stated that the search of the accused was conducted by the D.S.P. Ranvir Singh, D.S.P. while appearing as PW-10 has stated that it was Dr. Manwinder Singh and Dev Raj, who conducted the search of the appellant. The search conducted by any one of them is not shown on the record to have been preceded by the offer of search of the searching officer by the accused. According to learned counsel for the appellant, this makes the search doubtful and inadmissible in evidence. He has placed reliance in this regard upon decision of a case reported as State of Punjab Vs. Kaushal Singh Pathania, 2004(4) RCR (Crl.) 498 .

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Learned counsel for the appellant has further submitted that there are various other contradictions available in the evidence of the prosecution which make the same unreliable. According to him, learned

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Crl. Appeal No. 1411-SB of 2004

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trial court has ignored all the aforesaid circumstances and has wrongly held the appellant guilty and convicted him.

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Learned State counsel has submitted on the other hand that the demand of bribe by Lovely Kumar is proved by Achhar Singh himself. According to him, other evidence consists of statements of Dr. Manwinder Singh and Ranvir Singh, DSP and there is no reason for disbelieving them. He has, thus, submitted that learned trial court has rightly held the appellant guilty and convicted him for the offence.

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Significance of a shadow witness to a prosecution of this nature cannot be underestimated. In this case, the shadow witness is Jagdish. Achhar Singh (PW-6) describes him as a person, who is usually available in the courts. It shows that Jagdish is a court bird and such court birds are convenient witnesses to the police and cannot be said to be an independent witness in true sense of the expression. Despite it being the position of Jagdish, he still failed to support the prosecution case. So, first of all, it can be said that a truly independent witness was not joined in the raiding party and secondly, it has to be taken that the evidence of demand of bribe by appellant from Achhar Singh failed to come on record on this witness failing to support the prosecution case.

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There is no rule of law or prudence that the person giving bribe cannot be believed of this aspect. However, in a case where the shadow witness resilies from his earlier statement, the statement of the bribe giver has to be carefully scrutinized and reliance can be placed on the statement of such a person only if his statement is found free from blemishes.

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Crl. Appeal No. 1411-SB of 2004

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There are some contradictions between the statements of Achhar Singh (PW-6) and the other witnesses of the prosecution. While Achhar Singh says that from the office of Vigilance Bureau, they went straightaway to the building of State Bank of India, Ghala Mala Chowk, Majitha Road, Amritsar, the other witnesses say that they had gone to the building of Medical College, Amritsar before diverting to the building of State Bank of India.

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It is a case where the appellant is claimed to have demanded bribe in a sum of 2,000/- for processing the case of the complainant for GPF advance in a sum of 6,000/-. The fact is that the GPF advance in a sum of 6,000/- was asked from the GPF account of the complainant. It is hard to believe that a person processing a loan application for such an amount would demand 2,000/- as bribe. It is another unusual fact that on the very making of application, the appellant made this demand and till 30.8.2001, the complainant did not bring this fact to the notice of any authority of the Medical College.

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The prosecution has examined one Krishan Lal as PW-5. He is cashier in the office of Principal, Medical College, Amritsar. The cheque, as per Krishan Lal (PW-5) was ready on 29.8.2001 and on that very day itself, the complainant was before said Krishan Lal. Krishan Lal says that he offered to give the cheque to the complainant on 29.8.2001. However, the complainant told him to give the cheque to the appellant. This aspect is quite intriguing. One fails to understand why the cheque, which was available to the complainant, was asked by him to be given to the accused, particularly when the complainant was not willing to pay him

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Crl. Appeal No. 1411-SB of 2004

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any amount as bribe.

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Coming back to contradictions, it can be noticed that Achhar Singh (PW-6) has claimed that he and Jagdish went to the bank from Vigilance Bureau on foot. None of the other witnesses is at one with him in this regard. While Dr. Manwinder Singh (PW-2) says that Achhar Singh and Jagdish left the Vigilance Bureau on cycle, Ranvir Singh, DSP (PW-10) says that the raiding party left Vigilance Bureau in two vehicles and after reaching Ghala Mala Chowk, Achhar Singh and Jagdish were sent on foot to the branch of State Bank of India. He has further stated that from Vigilance Bureau office to Ghala Mala Chowk, Achhar Singh, Jagdish, Dr. Manwinder Singh and Dev Raj were there in the official vehicle with him. Though, there are a few other contradictions between the statements of Dr. Manwinder Singh and Ranvir Singh, DSP regarding the use of the vehicles, yet those could be ignored as insignificant.

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There has been rivalry between the unions of class III and class IV employees of Medical College, Amritsar. This fact is admitted by Achhar Singh (PW-6). He has further admitted that the accused belonged to the class III employees union and he himself belonged to class IV employees union. When Achhar Singh was questioned in this regard, he did not deny himself or the appellant to have nothing to do with the rivalry of the two unions.

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The circumstance that the raiding party went first to Medical College and therefrom the complainant was directed to reach State Bank of India by the accused, does not appeal to common sense. The cheque was with the appellant and the complainant had the money to be

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Crl. Appeal No. 1411-SB of 2004

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paid as bribe to the appellant. In this situation, there was no reason for the appellant to have directed the complainant to reach State Bank of India. Moreover, Dr. Manwinder Singh (PW-2) and Ranvir Singh, DSP (PW-10) make statements in this regard, while the complainant Achhar Singh (PW-6) does not say that he or the other members of the raiding party reached Medical College first and then the State Bank of India, Ghala Mala Chowk branch.

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It is a strange case where a very important employee of Irrigation and Power Research Institute, Amritsar posted as Research Officer was associated in the raiding party on 30.8.2001 and he says that the raid was conducted on 11.9.2001.There are other contradictions between the statements of Dr. Manwinder Singh and other witnesses which have the tendency to show that this witness might not have been associated in the raid.

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Search of the person of the accused after passing of the tainted money in a trap case occupies very important place. Regarding search, Ranvir Singh, DSP, the investigating officer of the case says that the same was conducted by Dr. Manwinder Singh and Dev Raj. On the contrary, Dr. Manwinder Singh (PW-2) says that the search was conducted by Ranvir Singh, DSP. This is a very serious contradiction in the evidence regarding the search. Assuming that Ranvir Singh, DSP (PW-10) forgot about the search having been conducted by him and had stated under a mistake that it was conducted by Dr. Manwinder Singh and Dev Raj, it has to be noticed that he did not offer his search to the accused before conducting the search of the person of the accused. At

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least, there is nothing on the record by way of a document of such search or in the statement of PW-10 to show that he had offered his search before searching the person of the accused. It has been laid down by this court in Kaushal Singh Pathania's case (supra) that any search by a police officer without offering his search to the accused would be illegal.

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Taking into account the facts that Jagdish, the shadow witness was an easy witness, he too failed to support the prosecution case, there was rivalry between the unions of the appellant and complainant as also the other circumstances noticed above, I do not find the prosecution to have succeeded in bringing home the guilt of the appellant. The judgment of conviction of the appellant is, therefore, not sustainable. Consequently, I accept the appeal and setting aside the judgment of conviction and order on sentence, acquit the appellant of the charge.

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(VIJENDER SINGH MALIK) JUDGE

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May 30^th , 2012 som

Lovely Kumar v. State of Pb.

Case brief

What is this about?

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Lovely Kumar v. State of Pb.

Case brief

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