KAILASH CHAND Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated April 1, 1987, passed by the Special Judge, Narnaul, by which Kailash Chand, appellant, has been convicted under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act as also under Section 161 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/ - and in default of payment of fine, to undergo further rigorous imprisonment for six months on each count both the substantive sentences were, however, ordered to run concurrently.

(2.) THE prosecution case, briefly stated, is that Kailash Chand, accused, while working as a Clerk in Municipal Committee, Rewari, had been put on duty for pursuing the legal cases of the Municipal Committee in various courts. In the discharge of his official duties he had been pursuing the case of Kishan Singh, peon of Municipal Committee, Rewari (Complainant in this case), whose services had been terminated by the order of Deputy Commissioner, Narnaul, against which order he had filed a petition challenging the termination of his services before the Labour Court, Faridabad, and the Labour Court had ordered his re -instatement. The complainant had approached the accused on April 10, 1986, for his re -instatement order but the accused demanded Rs. 300/ - from him by way of illegal gratification for helping him in the matter. The complainant did not want to give money to the accused. So, on April 15, 1986, he approached the State Vigilance Bureau, Gurgaon, and got recorded his statement; on the basis whereof F.I.R., Ex.PM, was registered. A raid was organised after joining Sukhbir Singh, Sub Divisional Officer, P.W.D. (B&R) in the raiding party. The complainant gave Rs. 300/ - to Daya Nand, D.S.P., who after putting his signatures and applying phenolphthalein powder thereon, returned the same to the complainant for further handing over these to the accused on demand. S.I. Maharaj Singh was deputed as a shadow witness to observe the transaction and to hear the conversation between the accused and the complainant as also to give a signal to the raiding party as soon as the amount had been accepted by the accused. The complainant and S.I. Maharaj Singh went ahead of the raiding party and entered the office of the Committee, where complainant went inside the room of the accused, while S.I. Maharaj Singh stood outside by the side of a window. The accused demanded money from the complainant who handed it over to him. The accused put the currency notes in his pocket. Thereafter, complainant gave a signal to S.I. Maharaj Singh who, in turn, gave the signal to the raiding party as a result where of the raiding party conducted the raid and on search of the accused by the Deputy Superintendent of Police, three currency notes were recovered from the pocket of the shirt which the accused was wearing at that time. These currency notes were the same which had been signed by the Deputy Superintendent of Police and treated with Phenolphthalein powder for being given to the accused on demand. The Deputy Superintendent of Police then got the hands of the accused as also the pocket of his shirt washed in a solution of sodium carbonate. The water turned pink. The hands of the complainant were also got washed in a similar solution. The water again turned pinkish. The resultant water was separately sealed in three bottles and the sealed bottles were taken into possession. The currency notes were also separately sealed and taken into possession. The resultant water of the washes and the currency notes, in sealed parcels, were sent to the Forensic Science Laboratory for analysis and the Chemical Examiner reported that the water of the said washes contained phenolphthalein powder and also the sodium carbonate whereas the currency notes carried the phenophthalein powder. After obtaining necessary sanction from Deputy Commissioner, Narnaul, for the prosecution of the accused, the accused was challenged and charged for offences under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 of the Indian Penal Code.

(3.) PROSECUTION , to prove its case against the accused, examined P.W.1 Sudarshan Kumar, Head Clerk; P.W.2 Virinder Singh, Draughtsman; P.W.3 Kishan Singh, complainant; P.W.4 Inspector Maharaj Singh; P.W.5 Kailash Nath, Reader to Deputy Commissioner, Narnaul; P.W.6 Sukhbir Singh, S.D.O. and P.W.7 Daya Nand, D.S.P. Besides, affidavits Exhibits PK and PK/1 of Constables Naurang Singh and Sarwan Kumar, respectively and report, Ex.PL. of the Chemical Examiner were also tendered in evidence. P. W.I Sudarshan Kumar, Head Clerk, deposed that in April, 1986, the accused had been put on duty as a perokar for pursuing the case of Kishan Singh, complainant and on an application, Ex. PD, made by Labour Inspector for re -instatement of the complainant in compliance with the award of Labour Court, Faridabad, the accused had made endorsement, Ex.PD 11, thereon to the effect that a copy of the judgment be obtained from the Labour Court for further action. The witness further stated that complainant Kishan Singh had also made an application, Ex. PF, for his re -instatement and that the accused had made endorsement, Ex. PG, on a separate sheet on April 9, 1986, for obtaining orders to file an appeal in the High Court against the award of the Labour Court. P.W.2 Virinder Singh, Draughtsman, deposed that on May 5, 1986, he had prepared scaled site plan, Ex.PJ, with correct marginal notes, at the instance of the police and on the pointing out of Kishan Singh PW. P.W. 3 Kishan Singh, complainant, deposed that his services had been terminated on February 20, 1984 by Municipal Committee, Rewari; that he had moved an application in the Labour Court, Faridabad, where the matter was decided in his favour on December 6, 1985; that he got a copy of the order and presented it along with an application to the Municipal Committee for further action but no action was taken thereon and that on April 10, 1986, Kailash Chand accused had told him that if he paid Rs. 300/ - to him by way of illegal gratification, he would get his work done. He also stated that the accused had told him that the amount should be paid to him up to 9.00 A.M. on April 15, 1986 and as he did not want to give the illegal gratification to the accused, so he approached the Deputy Superintendent of Police, State Vigilance Bureau, Gurgaon. He further stated that his statement was recorded and a raid was conducted wherein the signed currency notes smeared with phenophthalein powder had been recovered from the custody of the accused. He further stated that the hands of the accused, pocket of the shirt of the accused and his own hands were got washed in a solution of some powder, which had turned pinkish. He further stated that all these washes were put into nips and sealed with the seal of 'KH' and taken into possession vide memos, Exhibits PR, PR/1 and PR/2 respectively. The witness also stated that the DSP then carried out his search and nothing was recovered from him whereas on personal search of the accused, besides a pen and watch, Rs. 20/ - and some paise were recovered. He further stated that shirt, Ex.P. 1, of the accused was sealed with the seal of 'KH' and taken into possession vide memo, Ex.PR/1. The witness further stated that after receiving the amount of Rs. 300/ -, the accused had told him that his file had been sent to the High Court and that he would get the matter decided in his favour from the High Court. P.W.4 Inspector Maharaj Singh deposed that he had been instructed to give a signal as soon as the currency notes smeared with phenophthalein powder and duly initialled by the Deputy Superintendent of Police had been accepted by the accused from the complainant. He further stated that on acceptance of the currency notes by the accused from the complainant, he had given a signal to the raiding party; as a result of which the Deputy Superintendent of Police conducted the raid and recovered the tainted currency notes from the pocket of the accused. He also deposed that the hands of the accused, pocket of his shirt as also the hands of the complainant were got washed in a solution of sodium carbonate and the water had turned pinkish. He further deposed that the water of the said washed and the currency notes, which were recovered from the accused, were also taken into possession. P.W.5 Kailash Nath, Reader to Deputy Commissioner, Narnaul, who is a formal witness, proved the sanction order, Ex.PS, for the prosecution of the accused. P.W. 6 Sukhbir Singh, S.D.O., deposed that he had joined the raiding party in P.W.D. Rest House, Rewari, on April 15, 1986, at about 3.30 P.M. and the Deputy Superintendent of Police, before leaving the Rest House, had handed over three currency notes, duly signed by him, to complainant Kishan Singh and a memo in that regard was also prepared. He further stated that the Deputy Superintendent of Police had directed Kishan Singh, complainant, to hand over the said currency notes to Kilash Chand accused on demand of illegal gratification and that S.I. Maharaj Singh was asked to be a shadow witness and to give a signal by putting his hand on his head, as soon as the amount had been accepted by the accused. The witness further deposed about the conduct of the raid, the manner in which the hand wash and pocket wash of the accused and the hand wash of the complainant were collected, sealed and taken into possession. P.W.7 Daya Nand, Deputy Superintendent of Police, too substantially corroborated the case of the prosecution on all material particulars.