Mukhtiar Singh Since (Decd.) … vs The State Of Punjab on 14 July, 2017

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1163 OF 2017
(ARISING OUT OF S.L.P (CRIMINAL) NO. 207 OF 2016)

MUKHTIAR SINGH (SINCE DECEASED)
THROUGH HIS L.R. …APPELLANT

VERSUS

STATE OF PUNJAB ….RESPONDENT

JUDGMENT

AMITAVA ROY, J.

Leave granted.

2. The appellant, heir of Mukhtiar Singh (since deceased) has

carried this appeal to this Court against the affirmation of his

conviction under Sections 7 and 13(2) of the Prevention of

Corruption Act, 1988 (for short, hereafter referred to as ‘the Act’),

recorded at the first instance by the learned Special Judge, S.A.S.

Nagar (Mohali) in his judgment and order dated 04.09.2009.

Thereby the predecessor of the present appellant had been, as a
Signature Not Verified

Digitally signed by
NEELAM GULATI

consequence of his conviction, sentenced to rigorous imprisonment
Date: 2017.07.14
16:37:08 IST
Reason:

for one year for the offence under Section 7 and to pay a fine of
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Rs.2,000/- therefor and further sentenced to 2 years’ rigorous

imprisonment for the offence under Section 13(2) of the Act along

with fine of Rs.2,000/- with related default sentence.

3. Though this verdict was challenged before the High Court by

the original convict, he, during the pendency of the appeal expired,

whereupon the present appellant got herself substituted with a bid

to purge him of the stigma. She having failed in her endeavour as

the appeal has been dismissed, seeks redress from this Court.

4. We have heard Mr. O.P. Bhadani, learned counsel for the

appellant and Ms. Jaspreet Gogia, learned counsel for the

respondent.

5. Sans the unnecessary details, the essence of the prosecution

case is that the predecessor of the appellant, Mukhtiar Singh (also

referred to hereinafter as original accused) while was serving as

Station House Officer of Police Station, Ajnala was entrusted with

the investigation of the case launched against Sarabjit Singh

(complainant) by his (Sarabjit) wife under Sections 406,498A IPC. It

was alleged by the complainant-Sarabjit Singh that the original

accused in order to favour him in the investigation demanded and

received bribe of Rs. 3,000/- from him (Sarabjit) and in the process

and at the fag-end of the probe, demanded a further amount of
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Rs.2,000/- as illegal gratification to file a report of exoneration.

That the original accused threatened to harass the complainant if

he did not submit to his demand, was also imputed. At this, the

complainant approached the DSP, Vigilance, FS-I Unit – 2 Punjab,

Chandigarh and lodged a complaint disclosing the above facts.

6. The said officer after recording the statement of the

complainant took preparatory steps to lay a trap to intercept the

original accused and set up a trap team constituting amongst

others of Inspector Satpal (PW2) and Aman Kumar (PW3). Currency

notes furnished by the complainant amounting to Rs. 2,000/- were

smeared with phenolphthalein powder and handed over to the

complainant to be delivered to the original accused on demand.

Inspector Satpal (PW2) was nominated as a shadow witness to

accompany the complainant so as to be a witness to the possible

transaction. Subsequent thereto, on the appointed day, the trap

team visited the Ajnala Police Station, whereupon the complainant

and the shadow witness met the original accused in his room.

Thereafter the original accused having enquired as to whether

money had been brought, the complainant handed over the

prepared currency notes to the former, who kept it in a card board

box placed on his table. The prosecution version is that on this, the
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shadow witness signalled the other members of the trap team

waiting outside, who thereafter entered the room, confronted the

original accused with the demand and receipt of the currency notes

whereupon, he took out the same from the card board box and

handed over those to trap team. As the fingers of the original

accused when dipped in the chemical compound prepared for the

purpose indicated that he had handled the currency notes, the

investigating party completed the formalities and after obtaining the

report of the Forensic Science Laboratory, lodged the prosecution

against the original accused on obtaining the necessary sanction

therefor.

7. In support of the charge under Sections 7 and 13(2) of the Act

laid by the prosecution, which the original accused denied, it

examined several witnesses including the complainant Sarabjit

Singh (PW1), the shadow witness Inspector Satpal (PW2), Aman

Kumar (PW3) and Paramjit Singh Khaira (PW5). In course of his

examination under Section 313 Cr.P.C., the original accused denied

the correctness of the incriminating evidence adduced by the

prosecution and pleaded to be innocent. He categorically denied to

have either made any demand for illegal gratification or having

received any bribe from the complainant and alleged that the
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complainant was a relative of Superintendent of Police, Mukhwinder

Singh Cheena, who constantly pressurised him (original accused)

not to file charge-sheet in the case lodged against the complainant

and that as he (original accused) did not succumb thereto, he was

falsely implicated in the case through Sarabjit. The original accused

also examined Lakhwinder Singh as a defence witness to

demonstrate that the prosecution case of demand and recovery

through a trap drill was a myth and that instead on the basis of the

stratagem between Sarabjit and Superintendent of Police,

Mukhwinder Singh Cheena, he was forcibly lifted from outside the

Ajnala Police Station and embroiled by fabricating records.

8. The Trial Court however on the basis of the evidence on record

held the charge against the original accused to be proved and as

referred to hereinabove, the High Court by the impugned order, has

sustained the conviction and sentence so recorded by it.

9. As the impugned judgment would reveal, the High Court while

noting that the original accused at the relevant time was in-charge

of the investigation of the case under Sections 406,498A IPC

initiated by the wife of the complainant against him, proceeded on

the pre-supposition that as both the original accused and the

complainant belonged to the police force, there was a remote
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possibility of a false complaint being lodged. It held that the

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demand of Rs. 2,000/- and the receipt thereof had been established

by the prosecution and there was no reason for the prosecution or

its witnesses to lie against the original accused. The High Court

however recorded that there was no direct demand of illegal

gratification by the original accused from the complainant in the

presence of the shadow witness at the police station, but the query

made by him (original accused) of the money being brought or not

did amount to such demand. In addition, the receipt of the currency

notes of Rs. 2,000/- which was recovered by the trap team, did

substantiate the accusation of demand as well. The High Court held

the view that the imputation of false implication at the instance of

the Superintendent of Police, Mukhwinder Singh Cheena, as made

by the original accused in his 313 Cr.P.C. statement, in absence of

any evidence, did not merit acceptance. To reiterate, the High Court

thus affirmed conviction and sentence awarded by the Trial Court.

10. The learned Counsel for the appellant has strenuously urged

that the evidence on record is visibly deficient to prove the demand,

receipt and recovery of any amount of illegal gratification as alleged

and thus as the indispensable ingredients of the offence with which

the original accused had been charged, have remained unproved,
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the conviction and sentence is patently untenable and if allowed to

stand would result in gross travesty of justice. Without in any

manner conceding to the charge of receipt or recovery of the

amount of Rs.2,000/- as per the prosecution case, it has been

alleged that in absence of any proof of demand therefor, the same is

wholly inconsequential qua the prescriptions of Sections 7 and 13

of the Act. The prosecution having failed to establish any demand

for bribe as alleged, no presumption under Section 20 of the Act is

also available to further the charge, he urged. To buttress these

pleas, reliance has been placed on the decision of this Court in P.

Satyanarayana Murthy vs. District Inspector of Police, State

of Andhra Pradesh and Another1.

11. As against this, the learned Counsel for the respondent has

submitted that the evidence adduced by the prosecution is cogent

and convincing and in the face of the concurrent findings of the two

two courts below holding that the charge against the original

accused had been established, no interference is warranted. She

has further asserted that not only the essential ingredients of the

offence under Sections 7, 13(2) of the Act have been amply proved

by the prosecution, the view taken by the Trial Court and affirmed

by the High Court finds endorsement in the pronouncements of this
1 (2015) 10 SCC 152
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Court in Somabhai Gopalbhai Patel vs. State of Gujarat2 and

Mukhtiar Singh vs. State of Punjab3.

12. The contrasting arguments and the evidence on record to the

extent essential and relevant have been analysed.

13. Before averting to the evidence, apt it would be to refer to the

provisions of the Act whereunder the original accused had been

charged:

“7. Public servant taking gratification
other than legal remuneration in respect
of an official act. – Whoever, being, or
expecting to be a public servant, accepts
or obtains or agrees to accept or
attempts to obtain from any person, for
himself or for any other person, any
gratification whatever, other than legal
remuneration, as a motive or reward for
doing or forbearing to do any official act
or for showing or forbearing to show, in
the exercise of his official functions,
favour or disfavour to any person or for
rendering or attempting to render any
service or disservice to any person, with
the Central Government or any State
Government or Parliament or the
Legislature of any State or with any
local authority, corporation or
Government company referred to in
clause (c) of section 2, or with any
public servant, whether named or
otherwise, shall be punishable with
imprisonment which shall be not less
than three years but which may extent
to seven years and shall also be liable to

2 (2014) 5 SCC 103
3 (2016) 11 SCC 357
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fine.

13. Criminal misconduct by a public
servant – (1) A public servant is said to
commit the offence of criminal
misconduct, –
…..
(2)……………”

14. The indispensability of the proof of demand and illegal

gratification in establishing a charge under Sections 7 and 13 of the

Act, has by now engaged the attention of this Court on umpteen

occasions. In A. Subair vs. State of Kerala4, this Court

propounded that the prosecution in order to prove the charge under

the above provisions has to establish by proper proof, the demand

and acceptance of the illegal gratification and till that is

accomplished, the accused should be considered to be innocent.

Carrying this enunciation further, it was exposited in State of

Kerala vs. C.P. Rao5 that mere recovery by itself of the amount

said to have been paid by way of illegal gratification would not prove

the charge against the accused and in absence of any evidence to

prove payment of bribe or to show that the accused had voluntarily

accepted the money knowing it to be bribe, conviction cannot be

sustained.

4 (2009) 6 SCC 587
5 (2011) 6 SCC 450
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15. In P. Satyanarayana Murthy (supra), this Court took note of

its verdict in B. Jayaraj vs. State of A.P.6 underlining that mere

possession and recovery of currency notes from an accused without

proof of demand would not establish an offence under Section 7 as

well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as

well that in the absence of any proof of demand for illegal

gratification, the use of corrupt or illegal means or abuse of position

as a public servant to obtain any valuable thing or pecuniary

advantage cannot be held to be proved. Not only the proof of

demand thus was held to be an indispensable essentiality and an

inflexible statutory mandate for an offence under Sections 7 and 13

of the Act, it was held as well qua Section 20 of the Act, that any

presumption thereunder would arise only on such proof of demand.

This Court thus in P. Satyanarayana Murthy (supra) on a survey

of its earlier decisions on the pre-requisites of Sections 7 and 13

and the proof thereof summed up its conclusions as hereunder:

“23. The proof of demand of illegal gratification,
thus, is the gravamen of the offence under
Sections 7 and 13(1)(d)(i) and (ii) of the Act and
in absence thereof, unmistakably the charge
therefor, would fail. Mere acceptance of any
amount allegedly by way of illegal gratification
or recovery thereof, dehors the proof of
demand, ipso facto, would thus not be
sufficient to bring home the charge under these
6 (2014) 13 SCC 55
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two sections of the Act. As a corollary, failure
of the prosecution to prove the demand for
illegal gratification would be fatal and mere
recovery of the amount from the person
accused of the offence under Sections 7 and 13
of the Act would not entail his conviction
thereunder.”
(emphasis supplied)

16. The textual facts in Somabhai Gopalbhai Patel (supra) and

Mukhtiar Singh (supra) and the quality of evidence adduced by

the prosecution are clearly distinguishable and are thus of no

avail to the prosecution as would be discernible from the analysis

of the materials on record.

17. It is in the above adumbrated legal enjoinment, that the

evidence on record has to be scrutinised. Having regard to the

gravamen of the charge and the imperatives of demand of illegal

gratification, the receipt and recovery thereof, the evidence on

record relatable thereto only need be noticed.

18. Sarabjit Singh (PW1), the complainant stated that on

01.06.2005, he was posted with Traffic Police at Moga and that at

the instance of his wife, a case under Section 498A IPC had been

registered against him in Ajnala Police Station. He stated that the

original accused, who was a sub-inspector of Ajnala Police Station

was conducting the investigation of the case, agreed to allow him to
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participate in the investigation on payment of Rs. 3,000/-, which

was accordingly paid. The witness alleged that the original accused

made a further demand of Rs.3,000/-, whereafter negotiation was

scaled down to Rs.2,000/-, so as to favour the complainant in the

case, with the threat that if the demand was not met, he would see

that he is harassed in connection therewith. According to this

witness, he being disinclined to advance further illegal gratification,

lodged a complaint with DSP Paramjit Singh Khaira, who recorded

his statement and requisitioned from him currency notes of Rs.

2,000/- comprised of three notes of Rs.500 and five notes of Rs.100

each, treated those with phenolphthalein powder and constituted a

trap team with Inspector Satpal as shadow witness and Aman

Kumar Mani and Shashi Kant. The witness further stated that the

police party thereafter visited Ajnala Police Station and he and

Inspector Satpal met the original accused in his room and on being

asked as to whether the money had been brought or not, he handed

over Rs.2,000/- as prepared to the original accused, who received

the same and after counting the money kept in a card board box.

At this, the shadow witness signalled the waiting members of the

raiding party along with the DSP Paramjit Singh Khaira, who

entered the room, intercepted the original accused and recovered
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the currency notes on being handed over by him on demand. The

witness also stated about the exercise undertaken by dipping the

hands of the original accused in the liquid compound prepared,

which turned pink to indicate that he had handled the currency

notes treated with phenolphthalein. The witness also proved the

currency notes as Ex. P1 to P8.

19. In his cross-examination, the complainant admitted that M.S.

Cheena, the then Superintendent of Police, Vigilance was posted as

S.S.P, Moga but denied that he was related to him. He could not

recall the date on which he had paid Rs.3,000/- for the first time to

the original accused and admitted of not having made any

complaint in connection therewith. He conceded that one Santosh

Singh Lamberdar of his village was with him when he paid this

amount but the said person had not been produced as a witness

either in the investigation or at the trial. He admitted as well that

the card board box containing the money was not seized. He

however denied the suggestion that he had been pressurising the

original accused to conclude the investigation in his favour and that

he had implicated him falsely. He also denied the suggestion that

there was neither any demand for illegal gratification by the

accused nor was any sum as alleged accepted by or recovered from
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him.

20. Inspector Satpal (PW2), who was the shadow witness, after

reiterating the statement of the complainant with regard to the

pre-trap proceedings, stated that he along with the complainant on

that day met the original accused and followed to his quarter in the

building of the police station whereafter the original accused

enquired of the complainant as to whether he had brought the

money, on which, the latter handed over three currency notes

denomination of Rs.500 and five currency notes of Rs.100 each to

him and that he kept the same in a card board box lying near him.

The witness stated that he then gave a signal to the other members

of the raiding party including the D.S.P. (Vigilance) who entered the

room and undertook the steps pertaining to recovery and seizure as

narrated by the complainant.

21. In cross-examination, this witness did not refer to the quarter

of the original accused in the building of the police station and

stated that both he and the complainant met him in his room in the

police station. He however confirmed that the card board box was

lying on the table of the accused which was not seized by the police.

He denied the suggestion that he was not a member of the raiding

party and that he had signed the memo while sitting in his office.
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22. Aman Kumar Mani (PW3) is a witness to the steps taken by

the raiding party after it had entered the room in response to the

signal given by the shadow witness. According to him, on being

enquired, the original accused took out the currency notes of

Rs.2,000/- from the box lying in his room and that the same tallied

with those set out in the memo prepared by the police. He proved as

well the currency notes as Ex.P1 to P8.

23. Superintendent of Police, Paramjit Singh Khaira (PW5),

deposed that he was posted as DSP (Vigilance) FS-I, Unit-2, Punjab,

Chandigarh on 01.06.2005. He stated that on that day, he

recorded the statement of the complainant pertaining to the

demand of illegal gratification made by the original accused. He

thereafter constituted a trap team as above and treated currency

notes totalling Rs.2,000/- for the exercise and led the party to the

Ajnala Police Station. The witness affirmed that Inspector Satpal

was nominated as the shadow witness to accompany the

complainant to witness the actual transaction and track the

accompanying conversation and to give signal to the trap team at

the appropriate point of time. This witness however stated in

categorical terms that the complainant and the shadow witness

went to the house of the original accused whereas the other
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members of the trap team waited outside and when Inspector

Satpal flagged his signal, the house of the accused situated near

Ajnala Police Station was raided. He stated that the police party

intercepted the accused and on being asked, he took out the

currency notes of Rs.2,000/- from the card board box placed on the

nearby table which tallied with those mentioned in the pre-trap,

prepared memo and seized the currency notes. That the fingers of

the original accused were dipped in the liquid compound, which

turned pink was also stated.

24. In cross-examination, this witness admitted that Mr.

Mukhwinder Singh Cheena was at the relevant time posted as

Superintendent of Police, Mohali and that he was his in-charge,

then. To the suggestions made, the witness stated that he had no

knowledge that the complainant was related to Mukhwinder Singh

Cheena and that the latter had been pressurising the original

accused not to pursue the case against the complainant. He also

denied the suggestion that the Mr. Cheena was the brain behind

the raid and the registration of the case against the original

accused.

25. It would thus be patent from the materials on record that the

evidence with regard to the demand of illegal gratification either of
17

Rs.3,000/- which had been paid or of Rs.2,000/- as made on the

day of trap operation is wholly inadequate to comply with the

pre-requisites to constitute the ingredients of the offence with which

the original accused had been charged. Not only the date or time of

first demand/payment is not forthcoming and the allegation to that

effect is rather omnibus, vague and sweeping, even the person in

whose presence Rs.3,000/- at the first instance is alleged to have

been paid i.e. Santosh Singh Lamberdar, has neither been

produced in the investigation nor at the trial. In other words, the

bald allegation of the complainant with regard to the demand and

payment of Rs.3,000/- as well as the demand of Rs.2,000/- has

remained uncorroborated. Further to reiterate, his statement to this

effect lacks in material facts and particulars and per se cannot form

the foundation of a decisive conclusion that such demand in fact

had been made by the original accused. Viewed in this perspective,

the statement of complainant and the Inspector Satpal, the shadow

witness in isolation that the original accused had enquired as to

whether money had been brought or not, can by no means

constitute demand as enjoined in law as an ingredient of the offence

levelled against the original accused. Such a stray query ipso facto

in absence of any other cogent and persuasive evidence on record
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cannot amount to a demand to be a constituent of the offence

under Section 7 or 13 of the Act.

26. In addition thereto, not only the prosecution version of

demand and acceptance of illegal gratification in the police station

seems to be unusual, contradictions of the witnesses, PW-1, PW-2

and PW-5 with regard to the location of the transaction relating to

Rs.2,000/- also renders it doubtful. It is also noticeably unusual

that the currency notes when allegedly handed over by the

complainant to the original accused, the same instead of being

keenly kept with him, were placed casually in the card board box

placed on his table. Though the original accused, apart from

imputing his false implication at the instance of Superintendent of

Police Cheena, said to be the relative of the complainant could not

adduce any evidence to consolidate the same, the fact remains that

this officer at the relevant point of time was indeed Superintendent

of Police at Mohali and was the superior of PW5 who led the trap

operation.

27. On an overall appreciation of evidence on record, in the

context of the elucidation of law pertaining to proof of the

ingredients of Sections 7 and 13 of the Act as adverted to

herein-above, we are of the unhesitant opinion that the prosecution
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has failed to prove the charge levelled against the original accused

beyond all reasonable doubt. The charge against him therefore fails.

The Trial Court as well as the High Court had failed to analyse the

factual and legal aspects as involved in their true perspectives and

resultantly the determinations made are not sustainable. The

impugned judgment and order of the High Court affirming the

conviction and sentence recorded by the Trial Court is set aside.

The appeal is allowed.

………………………………………J.
(ARUN MISHRA)

……………………………………….J.
(AMITAVA ROY)
NEW DELHI;

JULY 14, 2017.

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