A.N Jindal, J

This judgment of mine shall dispose of two connected appeal Nos. 1399 and 1743-SB of 2005, against the judgment dated 5.8.2005 passed by the learned Sessions Judge, Faridkot.

Jagtar Singh accused-appellant (herein referred as ‘the accused’) has been prosecuted for the offence under Section 7, 13 (2) of the Prevention of Corruption Act, 1988 (herein referred as ‘the Act’), for allegedly having demanded a sum of Rs. 500/- and accepted Rs. 300/-, on account of bribe money for supplying copy of death certificate. Consequently, he was tried, convicted and ultimately sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/-, vide judgment dated 5.8.2005 passed by the learned Sessions Judge, Faridkot.

Maghar Singh son of Hari Singh resident of village Gurusar had expired on 6.3.2003 His son Ranjit Singh had moved an application in the office of the Civil Surgeon, Faridkot for getting his death certificate and deposited the requisite fee. Ranjit Singh being from a distant village deputed his cousin Jit Singh to collect the certificate. On 17.10.2003, Jit Singh complainant (herein referred as ‘the complainant’) met the accused in connection with the supply of copy of the death certificate to him, but he demanded Rs. 500/- as illegal gratification, but the bargain was settled at Rs. 300/-. However, the complainant being reluctant to pay the gratification returned to his village and contacted Chamkaur Singh ex-member Panchayat and on his suggestion, on 20.10.2003, the complainant along with Chamkaur Singh went to the office of the Deputy Superintendent of Police (Vigilance), Faridkot who recorded the aforesaid statement Ex.PM and sent the same to the police station on the basis of which FIR was recorded. The complainant handed over the currency notes worth Rs. 300/- of the denomination of Rs. 100/- each to the Deputy Superintendent of Police (Vigilance), who after treating the same with phenolphthalein powder, recorded their numbers in the memo and handed over to him again for payment to the accused on demand in the presence of Chamkaur Singh shadow witness, Gurinder Singh, District Social Security Officer and Piare Lal, Jr. Asstt. office of the District Social Security Officer, Faridkot through Deputy Commissioner, Faridkot who had been associated by DSP Baldev Singh (herein referred as the Investigating Officer). After organizing the raiding party and after making demonstration with regard to the process as followed by him, the Investigating Officer left for the office of the accused. The complainant along with shadow witness went to the accused and handed over the tainted currency notes on demand made by him. On receipt of the signal from the shadow witness, the police party conducted raid and arrested the accused red handed. DSP Baldev Singh arranged a glass of water and prepared a solution by adding sodium carbonate therein. Hands of the witnesses Gurjinder Singh and Piare Lal were got dipped in the said solution but the colour of the solution did not change, but when hands of the accused were got dipped in the said solution, the colour of the same turned pink. Thereafter, the said solution was put into a nip which was sealed with the seal bearing impression “BS” and slip bearing signatures of both the independent witnesses was also affixed. The said nip was taken into possession vide recovery memo Ex.P1 Thereafter, the accused took out the tainted currency notes from the left pocket of the pant and presented the same before DSP Baldev Singh. On comparison the numbers of the tainted notes and the numbers mentioned in the memo Ex.PH, stood tallied and thereafter the currency notes were taken into possession vide recovery memo Ex.PJ/1. Thereafter, another solution of sodium carbonate was prepared in the glass jar in which hands of both the independent witnesses i.e Gurjinder Singh and Piare Lal were got dipped but colour of the solution did not change, and when pocket of the trouser of the accused was dipped in the said solution, the colour of the same turned pink. The said solution was also put into a separate nip Ex.P2 The pant was converted into parcel and taken into possession vide memo Ex.PJ On personal search of the accused, a sum of Rs. 1672/- were recovered from the right pocket pant of the accused. The said currency notes, identity card, driving licence, one ball pen and wrist watch as recovered from the accused were taken into possession vide memo Ex.PK The records relating to death certificate of Maghar Singh Ex.P3 and Ex.P4 were also taken into possession vide memo Ex.PL The Investigating Officer prepared the rough site plan of the place of occurrence, recorded statements of the witnesses, on receipt of the sanction Ex.PE and the Chemical Examiner's report Ex.PP, the charge report was presented against him.

The accused was charged under Section 7, 13 (2) of the Act, to which he pleaded not guilty and opted to contest.

In order to substantiate the charges, the prosecution examined as many as ten witnesses. Jit Singh complainant (PW1) and Chamkaur Singh shadow witness (PW2) have not supported the prosecution version and they were declared hostile. Usha Kumari Computer Operator office of Civil Surgeon, Faridkot (PW3) deposed that the accused is working as Cleaner. However, in the case of emergency, they could be deputed for doing other duties also. The death certificate bearing No. 1241787 pertaining to Maghar Singh is in the handwriting of Class-IV Basant Singh and has been signed by Additional District Registrar, Births & Deaths, Faridkot. She also deposed that some times certificates are dispatched to the applicants and some times are given by hand and the certificate in question was prepared on 17.10.2003 She also stated that the accused was deputed to do the duty of preparing death certificates on 20.10.2003 HC Kirpal Singh (PW4), HC Parsan Singh (PW6) and C. Surinderjit Singh (PW7) are formal witnesses. Harbans Kaur, Clerk office of Civil Surgeon, Faridkot (PW5) has proved the copies of the appointment letter, service book, original letter dated 29.10.2003 and sanction letter Ex.PB to Ex.PE respectively.

Gurjinder Singh, District Social Security Officer, Bathinda (PW8), is the independent witness who has categorically testified in minute details about the circumstances in which recovery of the currency notes to the tune of Rs. 300/- was effected from the accused. He has stated that at about 3.05 p.m on receiving a signal from the shadow witness from inside the office of the accused, he along with police party went to the accused, who was found sitting in the chair while the complainant and Chamkaur Singh were standing by his side. On enquiry by the Deputy Superintendent of Police Baldev Singh accused confessed having received the bribe money. Thereafter the tainted currency notes were recovered from left pocket of his pant and on comparison of the currency notes with the numbers as mentioned in memo Ex.PH, the same tallied with each other. He also reiterated about the dipping of the hands of the witnesses as well as the accused in the solution. He also stated that the relevant portion of the pant of the accused Ex.P3 where the accused had placed the currency notes was also got dipped in the similar solution and the colour of the said solution became pink and the said solution was put into another nip which was taken into possession vide memo Ex.PJ He also proved the personal search memo with regard to taking into possession the articles recovered from him. DSP Baldev Singh (PW10) is the Investigating Officer and has proved the investigation prepared by him.

When examined under Section 313 Cr.P.C the accused denied all the incriminating circumstances appearing against him. He further explained that he was working as Cleaner and was also assigned the duty of issuance of birth and death certificate vide order dated 17.10.2003 which was received on 20.10.2003 at 11.00 a.m He joined the said duty at 12.00 noon on that day. He has further added that on 20.10.2003, he was called in the office of the Deputy Superintendent of Police, Vigilance, Faridkot and was falsely implicated in this case.

In defence, the accused examined Iqbal Singh Superintendent office of Civil Surgeon, Faridkot (DW1) who disclosed that the accused was working as Cleaner in their office and he was deputed to perform the duty to prepare the birth certificates on 17.10.2003 vide order Ex.D1 He also disclosed that on 20.10.2003, two constables in civil dress came to their office and took the accused along with them. No raid was conducted and the accused was falsely implicated in a trap case. Usha Kumari (DW2) has deposed that the order dated 17.10.2003 was received in her office on 20.10.2003 vide which nine employees including the accused were deputed under special scheme to prepare the birth certificates. The accused reported for duty on 20.10.2003 at about 11/11.30 a.m He was given the charge of the Police Station Sadar, Kotkapura regarding the preparation of the said certificate pertaining to the year 1996. She has also stated that the record with regard to death entry of Maghar Singh was received from the Police Station Sadar, Kotkapura on 16.10.2003 and the certificate was dispatched by post on 17.10.2003 Here it is mentioned that Usha Kumari who was examined as DW-2 had also appeared as PW-3. The court should not have summoned her again when she had once been summoned as a witness. As it appears that she was summoned again when the accused succeeded in putting some words in her mouth which may be favourable to him. Darshan Singh (DW3) is the witness with regard to getting joining report of the employees.

The trial ended in conviction.

Arguments heard. Record perused.

The moral degradation and also the money race in the society was no more an exception to the complainant Jit Singh (PW1) and Chamkaur Singh shadow witness (PW2). They were the persons who being aggrieved by the conduct of the accused, with a view to mend him, set the law enforcement machinery into motion by categorically signing statement Ex.PM before DSP Baldev Singh, have now resiled from their statements and stood by the side of the accused. Not only the statement for issuing the process was signed by them, they also signed the recovery memo Ex.PH with regard to handing over the currency notes to him, wash of hands Ex.PJ, washing of the pant Ex.PJ (exhibited for the second time), recovery of the currency notes Ex.PJ/1, search memo Ex.PK, recovery memo with regard to taking of the record into possession Ex.PL They appeared to be not an illiterate persons as they had signed the aforesaid memos. Chamkaur Singh (PW2) is ex-sarpanch of the village. Jit Singh (PW2) acknowledges his signatures on the aforesaid memos and it could not be expected from an educated and respectable of the village to sign the blank papers. They had also signed the solution prepared at the spot after dipping the currency notes as well as the relevant part of the pant.

Any way, it is revealed from the statement of Usha Kumari Computer Operator (PW3) that the accused was working as Cleaner in the office of Civil Surgeon, Faridkot and the accused was normally deputed to do the official duty with regard to preparation of the certificates. The raid was conducted on 20.10.2003, whereas, the accused after settling the money with the complainant had prepared the certificate on 17.10.2003 and he was to hand over the same on receipt of money. It is also a matter of common experience that in the Government Offices, some times Peons do the duty of the Clerk before they are formally deputed to do the same, therefore, it cannot be said that he had started performing the duty of a Clerk only after he received the orders on 20.10.2003

Learned counsel for the appellant has contended that no reliance could be placed on the testimonies of both the independent witnesses i.e Gurjinder Singh (PW8) and Piare Lal Jr. Asstt. (PW9). The Investigating Officer did not select these witnesses of his choice, but these were deputed by the Deputy Commissioner, Faridkot and they have supported the prosecution version forcefully and both of them, admit that when DSP Baldev Singh enquired from the accused whether he had accepted the bribe to which he answered in affirmative and thereafter search of the accused was conducted and the tainted currency notes were recovered from the left pocket of the pant of the accused. Though, Chamkaur Singh a shadow witness has not supported the prosecution case, yet, both Gurjinder Singh and Piare Lal state that it was on the signal given by Gurjinder Singh, that they went to the office of the accused, as such, it cannot be belied for any reason that Gurjinder Singh was not appointed as shadow witness and he had not given the signal. Testimonies of both the witnesses stand corroborated by DSP Baldev Singh. The testimonies of both the witnesses are quite consistent and lack any contradiction or discrepancies for dubbing them as unreliable and untrustworthy. The aforesaid two witnesses as well as DSP Baldev Singh had no axe to grind while implicating the accused in a false case. The accused has not assigned any reason for deposing against him in the case. They had no previous enmity against him.

The learned counsel for the appellant has urged that since the demand does not stand proved and it is also not proved as to what conversation took place between the complainant and the accused, in such circumstances, the recovery of the tainted money from the accused is hardly sufficient to hold him guilty.

The argument, though, may impress at the first instance, yet the same is proved to be fallacious. Both, Gurjinder Singh and Piare Lal the independent witnesses having no blemish at their hands stated that the accused admitted having accepted the bribe money of Rs. 300/-. Besides, the testimonies given by them stand corroborated by the documentary evidence in the shape of the memos. The death certificate though is stated to have been dispatched on 17.10.2003, yet, no entry with regard to dispatch of the certificate has been proved on the record. Had the certificate been dispatched on 17.10.2003, then question of its recovery from the office, on the day of occurrence, could not arise. The circumstances speak to the volumes that the accused in a greed to gallop Rs. 300/- for supplying the copy of the death certificate, which the complainant seriously needed, had kept it ready to hand over the same to the complainant on payment of the illegal gratification. It is not always essential that the demand of money is to be proved by the witnesses but the same could be proved from the circumstances as brought on record. Since the death certificate as applied by Ranjit Singh was recovered from him as well as the tainted currency notes, therefore, it has to be presumed that the accused accepted the said amount as illegal gratification. In this regard, reliance, if any, could be placed upon the judgment Hazari Lal v. State (Delhi Administration) .), AIR 1980 SC 873. In that case, even the complainant had partly turned hostile but corroborated the statement of the police officer on some material particulars. The present case is on the better footings. Two witnesses have fully supported the acceptance of the bribe by the accused and DSP Baldev Singh who was monitoring the raid has also not lagged behind while proving the case against the accused.

I, also do not find any merit in the contention that the testimony of the police officer cannot be placed reliance as they are interested in the success of the case. The contention does not find any merit as in the instant case, raid was not conducted by the petty officer, but was monitored by the police officer of the rank of Deputy Superintendent, associated by two official witnesses as ordered by the Deputy Commissioner, Faridkot. He has given the consistent statement. He has deposed while corroborating the statements of the independent witnesses, therefore, there is no reason to discard his testimony merely on the ground that he is a police officer. It was observed in case Girija Parshad (Dead) by L.Rs v. State of M.P 2007 (4) RCR (Criminal) 84 : 2007 (4) RAJ 683 : AIR 2007 SC 3106 that the police witnesses should not always be disbelieved. Credibility of a witness has to be tested on the touchstone of truthfulness and trustworthiness. In the given case, the court may not base conviction solely on the statement of the police officials, but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. In the instant case, besides the testimony of DSP Baldev Singh, there is testimony of Gurjinder Singh (PW8) and Piare Lal (PW9).

Learned counsel has also urged that mere proof with regard to receipt of money does not invite any inference that the same was illegal gratification. I, do not find any merit in the contention. It is observed that the circumstances as referred to above, establish the guilt of the accused to the hilt as it is proved that the accused had received the money. He has made no explanation as to how it came into his pocket. He has stated only that he was called in the police station and was implicated in the case. It may further be noticed that the accused did not level any allegations of bias or enmity against the police or other witnesses for implicating him in the false case. At the same time, he has also not explained as to how the money was received by him. Thus, the presumption would be that the accused received the money by way of illegal gratification. It was observed in case C.I Emden v. State of Uttar Pradesh (AIR 1960 SC 548) and V.D Jhingan v. State Of Uttar Pradesh (1966 (3) SCR 736), that if money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the old Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative. These aspects were highlighted recently in State of Andhra Pradesh v. V. Vasudev Rao (JT 2003 (9) SC 119 : 2003 (4) RCR (Cr.) 917 (SC)).

Again it deserves to be observed that when the recovery of the illegal gratification from the accused is proved, then the presumption under Section 20 (1) of the is attracted. Section 20 (1) of the Act lays down that if it is proved that the accused persons had accepted or obtained any gratification, it shall be presumed, unless contrary is proved, that he accepted the gratification as a motive or reward, as mentioned in Section 7 of the Act.

While further elaborating the presumption as envisaged under Section 20 of the Act, the The Apex Court in case The State represented by C.B.I Hydrabad v. G. Prem Raj, 2009 (4) RCR (Crl.) 927 observed as under :-

“It could be comprehended why a hotel was selected for doing official work. The accused failed to explain as to why hotel was selected for doing official work. Accused kept the money in bag of scooter from where the same was recovered. The fact that bag and scooter were not seized has no consequence when it was proved that money was recovered from the accused. Presumption of Section 20 was available, but High Court ignored the same. High Court, thus, has committed an error. When the amount was recovered from the accused, it was for the accused to explain as to how the amount came in his possession. Panch witnesses proved the demand and recovery from the accused. Neither the complainant nor other witness had any enmity with the accused, therefore, there was non reason for these persons to falsely implicate the respondent-accused.”

In the instant case also, it is established from the testimony of Gurjinder Singh (PW8) and Piare Lal (PW9) as also DSP Baldev Singh (PW10) that the accused had received the illegal gratification. Similar view was taken by the Apex Court in case M. Narsingha Rao v. State of Andhra Pradesh 2001 (1) RCR (Criminal) 95, wherein it was observed that the prosecution has to prove that the accused has accepted the gratification and on proof thereof, there is presumption to be drawn under Section 20 (1) of the Act that the accused accepted the gratification as a reward as is requirement of Section 7, unless contrary is proved.

In the present case, the accused has failed to prove that it was not a gratification and it was not received by him as a motive or reward or for omitting to do anything. In the aforesaid reported case also the complainant and the shadow witnesses had turned hostile while obliging the appellant, but in spite thereof, the Apex Court upheld the conviction. The aforesaid judgment is applicable to the facts of the present case on all the fours.

The other argument advanced by the learned counsel for the appellant is that Usha Kumari (PW3) employee of the department of the accused has stated that the death certificate is not in the hand of the accused and he was not deputed to prepare the death certificate. Actually Usha Kumari had also evil designs while appearing for the second time as defence witness. It appears that no such question was asked to her when she had appeared as a prosecution witness, but thereafter, at the time of defence, after doing spade work, Usha Kumari was summoned as DW-2 and was made to make a statement suiting to the accused. In any case, the duty to prepare the birth certificates does not mean that he could not prepare the death certificate. It is undisputed that the accused along with other employees of the accused were put on a special duty for preparation of the birth and death certificates on 17.10.2003 and undisputedly, the accused was already working in the same office since earlier, as such, he was not totally disconnected regarding the issuance of the death certificates prior to the date of raid. The accused has also not produced or proved the entry of the dispatch register in order to establish that the certificate has already been dispatched by Usha Kumari on 17.10.2003 The questions which were asked to Usha Kumari while appearing as DW-2 were never put to her while she appeared as prosecution witness obviously for the reason that the accused was afraid that she may not answer against him, but thereafter, he cleverly got her examined as defence witness. The conduct of Usha Kumari is not above board while stating that the accused was never entrusted with the work of issuing death certificate, whereas, he, in his statement under Section 313 Cr.P.C has stated that he was assigned additional duty of issuing birth and death certificates.

While take the case from another angle, Usha Kumari being co-employee could be won over and summoned as defence witness thereafter. The defence as set up by the accused was also not plausible and stands belied by the prosecution evidence. No doubt, the accused noted the orders regarding assigning of the additional duty on 20.10.2003, yet, it also could not be denied that he was already working in the same office prior to the noting of the order. It is not always that the additional duty is given by way of specific orders.

Thus, as a result of the aforesaid discussions and on appreciation of the evidence of all the three witnesses namely Gurjinder Singh (PW8), Piare Lal (PW9) and DSP Baldev Singh (PW10) as well as the other circumstantial evidence, it could well be observed that the complainant, and the shadow witness who had put the entire law machinery into motion by making a specific statement, joining the raid party, signing various memos and solution bottles have now intentionally made false statements in the court for the reasons best known to them, whereas, it is proved beyond doubt that the accused received the illegal gratification of Rs. 300/- on demand for supplying copy of the death certificate of Maghar Singh and the accused has failed to furnish any explanation as to how he came in possession of the tainted money.

Having scrutinized the impugned judgment, the same is well reasoned, well drafted and does not smell any such illegality much less irregularity warranting interference by this court.

Having looking into the judgment from all angles and in the wake of aforesaid discussions, no merit could be found in the appeal preferred by the State.

Resultantly, both the appeals stand dismissed.

Copy of the judgment be sent to the trial court for compliance and to proceed in accordance with law for taking action against Jit Singh complainant and Chamkaur Singh shadow witness for fabricating false evidence.

The Amicus curiae would be within his rights to receive his remuneration from the competent authority.

March 02, 2010 (A.N Jindal) deepak Judge