DHARAM PAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order passed by the Special Judge, Bhiwani dated 9.6.87 whereby he convicted and sentenced Dharam Pal (appellant herein) to undergo simple imprisonment for 62 days and to pay fine of Rs. 100/- under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and to further undergo simple imprisonment for 62 days under Section 161 IPC. He ordered both the substantive sentences to run concurrently. He ordered the period of detention suffered by him as an undertrial to be set off towards these substantive sentences.

(2.) FACTS of the case briefly stated are that in the year 1985, construction of the school building was going on in village Mundal Khurd. On 17.9.85, resolution was passed by the gram panchayat of village Mundal Khurd for withdrawal of a sum of Rs. 5,000/- by the Panchayat from the bank. On 17.9.85, cheque number was not mentioned in the resolution. On 21.9.85, Secretary of the gram panchayat mentioned cheque number in the resolution. On 21.9.85, Nihal Singh, Sarpanch of the gram panchayat of village Mundal Khurd went to the office of Block Development and Panchayat Officer (in short BDPO), Block, Bawani Khera Bhiwani. BDPO was not available there. He again went to the office of BDPO on 26.9.85 when BDPO met him. Dharam Pal appellant was BDPO, Bawani Khera during those days. On 26.9.85, some one was sitting with the BDPO. BDPO signed that cheque on 26.9.85, Nihal Singh returned to his village on 27.9.85, Dharam Pal went to village Mundal Khurd in a Matador. He alighted from that Matador in front of the shop of one Suraj Bhan. Nihal Singh also went there. Nihal Singh called Harke Ram Panch and Hari Ram Sarpanch respectively of village Mundal Kalan informing them that the new BDPO had come to village Mundal Khurd. Nihal Singh, Harke Ram and Hari Ram took the appellant to the 'Nauhra' of Nihal Singh, PW. Appellant demanded Rs. 500/- from Nihal Singh with regard to the cheque which he had signed on 26.9.85 at Bawani Khera. He put forth demand for this sum of Rs. 500/- being 10% of the amount of the cheque. Nihal Singh did not utter any word in regard to this demand being put forth by him. On 22.9.85, another cheque had been issued by the panchayat for Rs. 5000/- on the basis of resolution. Nihal Singh requested him to sign that cheque also. Dharam Pal refused to affix his signatures on that cheque saying that he should be paid Rs. 500/- as 10% of the amount of the previous cheque which he had signed. If he meant any cheque to be signed by him, he should pay him at the rate of 10% of the amount of the cheque. He asked Nihal Singh to show him the cash book. He accordingly showed the cash book to Dharam Pal. Some writing was made by Dharam Pal in the cash book and it was signed by him. He visited the school building on 27.9.85. Nihal Singh requested him to sign the cheque because he had to pay wages to the labourers. Dharam Pal told him to come to village Bawani Khera with the necessary records of the panchayat. On 27.9.85, Dharam Pal went to village Mundal Kalan along with Hari Ram Sarpanch and Harke Ram Panch. Nihal Singh also went to village Mundal Kalan. He again requested Dharam Pal to sign the cheque for Rs. 5,000/-. Dharam Pal told him that he would go back to Bawani Khera after visiting certain villages and that he (Nihal Singh) should meet him at Bawani Khera. Nihal Singh went to village Bawani Khera on 27.9.85 and met him in his office and told him that he had brought the proceedings and that he should sign the cheque. From there, Nihal Singh and Dharam Pal went to the kothi of Dharam Pal. Dharam Pal demanded Rs. 500/- from him with regard to the earlier cheque saying that he would sign the other cheque only if a sum of Rs. 500/- was paid to him. Dharam Pal told Nihal Singh that he would go on signing the cheques if amount @ 10% of the amount of cheque was paid to him. Nihal Singh went to village Mundal Khurd. At the bus stand of village Mundal Khurd, Hari Ram Sarpanch of village Mundal Kalan met him. Nihal Singh narrated the entire story to Hari Ram Sarpanch of village Mundal Kalan that Dharam Pal was demanding money @ 10% of the amount to be withdrawn from the bank and also that Dharam Pal was a stumbling block in the withdrawal of the amount from the bank and the construction of the school building was becoming difficult. On 30.9.85, Nihal Singh met Shri Sushil Kumar, IAS Sub Divisional Magistrate, Bhiwani and showed him the cheque dated 22.9.85. He wrote something on the cheque directing the BDPO to affix his signatures thereon. Nihal Singh met Dharam Pal on 3.10.85 and the cheque was signed by him saying that he had got the cheque signed from him by obtaining orders from the SDM, Bhiwani, and how long it would be possible for him to obtain such orders from SDM and he would sign the cheques only if 10% of the amount of cheque was paid to him. On 7.10.85, Nihal Singh met SDM, Bhiwani and produced affidavit Ex.PC before him and told him that Dharam Pal was demanding illegal gratification from him. SDM called Shri Daya Singh, DSP, Bhiwani who came there along with Shri Rajbir Singh, District Inspector of Police. There was some talk amongst SDM, Biwani, and DSP, Bhiwani. Nihal Singh was asked to come to village Bawani Khera on 8.10.85 at 10 AM. On 8.10.85, he went to the office of BDPO at about 9.30 a.m. Hawa Singh met him there. Nihal Singh and Hawa Singh went to Bawani Khera Rest House. SDM, DSP and District Inspector of Police, Bhiwani came in the rest house Bawani Khera. Nihal Singh handed over affidavit Ex.PC to SDM who passed it on to the DSP. Nihal Singh gave five currency notes worth Rs. 500/- to Shri Daya Singh, DSP who prepared memo Ex.PE which was attested by the witnesses. DSP Daya Singh searched the person of Nihal Singh and prepared memo Ex.PF in this behalf. These currency notes were initialled by DSP. He handed over the said currency notes to Nihal Singh vide memo Ex. PG which was attested by him (Nihal Singh). He was directed to hand over these currency notes to the BDPO (appellant- Dharam Pal) in his office but only on demand by him by way of illegal gratification. He deputed Hawa Singh PW to accompany Nihal Singh PW and to act as shadow witness and overhear the conversation that took place between Nihal Singh and Dharam Pal and witness the passing on of the money by Nihal Singh to the accused and raise signal by touching his right ear with his right hand as soon as the accused had accepted the money. DSP put endorsement Ex.PC/2 on affidavit Ex.PC and sent it to PS Bawani Khera for registration of the case on the basis of which formal FIR Ex.PC/1 was registered. Nihal Singh and Hawa Singh left the rest house for the office of the accused. They came to the office of the accused. Rest of the members of the raiding party remained behind at some distance. Nihal Singh PW went inside the office of the accused. Accused was available there. Hawa Singh stood in the verandah outside the office of the accused. Currency notes were handed over by Nihal Singh to the accused as demanded by him saying that the amount of Rs. 500/- was being given to him as 10% of the amount of the cheque and that the accused kept the money with him and told him that he would have no obstacle in his way if the amount continued to be paid to him like this. Accused put currency notes in the pocket of his bushirt. On receipt of the signal raised by Hawa Singh PW, Shri Sushil Kumar, SDM, Daya Singh, DSP and Rajbir Singh, District Inspector of Police and Asha Nand reached the spot along with Hawa Singh PW. At the sight of the raiding party the accused stood up. Daya Singh disclosed his identity to the accused and told him the purpose of his visit. He further told him that he wanted to take his personal search. Shri Daya Singh further told him that before he proceeded to effect his search, he could effect his search. Accused declined to search the person of Daya Singh. Daya Singh effected the personal search of the accused and recovered 6 currency notes of the denomination of Rs. 100/- each from the left pocket of the bushirt worn by him. He compared the numbers of the 5 currency notes with the numbers of the 5 currency notes with the numbers entered in memo Ex.PH and the numbers tallied. Currency notes are Ex.P2 to P6. Sixth currency note recovered from the possession of the accused is Ex.P7. All these currency notes were put in envelope Ex.P1 which was sealed with seal bearing impression "RK". Envelope Ex.P1 was taken into possession vide memo Ex.PK. Bushirt was also made into a sealed parcel sealed with seal bearing impression "RK" and taken into possession vide memo Ex.PJ. Personal search of the accused and Nihal Singh PW was carried out vide memos Ex.PL and PK attested by the PWs. Copies of the resolutions passed by the panchayat were taken into possession vide memo Ex.PT from Ram Phal Punia, Manager Kshetriya Bank, Mundal. After investigation, accused was challaned under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 IPC.

(3.) WITH a view to bring home to the accused the charge levelled against him, the prosecution examined Ram Mehar Singh PW1, Mohan Lal PW2, SI Heera Singh PW3, Dharam Pal Patwari PW4, Nihal Singh PW5, DSP Kirpal Singh PW6, Ram Phal Punia, Manager, HKGB Mundal PW7, Hari Ram PW8, Darshan Singh PW9, Hawa Singh PW10, Shri Sushil Kumar IAS PW11, Shri Roshan Lal PW12 and Shri Daya Singh, DSP PW13. Asha Nand PW was given up as won over by the accused.