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PETITIONER: B.   G. GOSWAMI

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT04/05/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 1457            1974 SCR  (1) 222  1973 SCC  (3)  85  CITATOR INFO :  F          1974 SC 852  (10)  F          1992 SC1922  (4)

ACT: Prevention of Corruption Act (2 of 1947), Ss. 4(1), 5(1) and (2)-Statutory presumption, if applicable. Practice-Sentence-Principles   for  imposing   sentence   of imprisonment.

HEADNOTE: (a)  With  respect  to the offence under s. 5(1)(d)  of  the Prevention   of   Corruption  Act,   1947,   the   statutory presumption  under s. 4(1) of the Act, against the  accused, is not available. R.   C.  Mehta  v. State of Punjab, A.I.R. 1971  S.C.  1420, referred to. (b)  Under  s.  5(1)(d)  read  with  s.  5(2),  the  minimum sentence  prescribed  is one year RI and a  sentence  for  a lesser  period  can  be imposed for special  reasons  to  be recorded in writing by the Court. In  the  present  case,  the  appellant  was  convicted  for offences under Ss. 5 ( 1) (d) and 5(2) of the Prevention  of Corruption  Act  and  under  s.  161.   I.P.C.  Sentence  of imprisonment and fine were imposed for each of the offences, and  the  sentences  of imprisonment were  directed  to  run concurrently.   The  High  Court  in  appeal,  reduced   the sentence  to I year R.I. and maintained the line.  The  High Court   and  the  trial  Court  relied  on   the   statutory presumption. In appeal to this Court, HELD  :  (1)  The  offence was committed  7  years  ago  and criminal  proceedings lasting for such a long time would  by itself  mean considerable harassment for an accused  person. Therefore,  it would not be fair or just to further  prolong the proceedings by remanding the case to the trial Court, to examine  the  evidence afresh after ignoring  the  statutory presumption. [226E-F] (2)  This  Court  also  does not examine  the  evidence  for itself  in appeals under Art. 136 except when  interests  of justice  so  demand.  In the instant case,  the  same  facts constitute  the offence under s. 161.  I.P.C. to  which  the statutory  presumption  under s. 4(1) of the  Prevention  of

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Corruption  Act is admittedly applicable.  There is thus  no question  of grave failure of justice or of a guilty  person escaping  justice,  if  this  Court  does  not  examine  the evidence  for determining the guilt of the  appellant  under Ss. 5(1) (d) and 5 (2) of the Act. [226B-C, F-G] (3)  The question of sentence is always a difficult question requiring a proper adjustment of the reformatory,  deterrent and  punitive aspects of punishment.  In the  instant  case, considering  the facts that the appellant is going  to  lose his job and has to earn a living for himself and members  of his  family. the ends of justice would be met by imposing  a fine instead of sending him back to jail (the appellant  was on  bail) after 7 years of agony and harassment of  criminal proceedings. [227A-B, D-E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 23  of 1970. Appeal  by special leave from the Judgment and  Order  dated October  29,  1969 of the Delhi High Court at New  Delhi  in Criminal Appeal No. 103 of 1967. R.   L. Kohli, for the appellant. H.   R. Khanna, for the respondent. The Judgment of the Court was delivered by                223 DUA,  J.-The  appellant  in this  appeal  by  special  leave challenges the judgment and order of a learned single  Judge of the High Court of Delhi dated October 29, 1969 upholding, on  appeal, the appellant’s conviction under section  5  (2) read with section 5 (1) (d) of the Prevention of  Corruption Act,  1947  and  under sec. 161, I.P.C.  The  Special  Judge convicting  the appellant by his order dated May  24,  1967, bad  imposed a sentence of rigorous imprisonment  for  1-1/4 years  and  also  imposed a fine of  Rs.  200/-  with  three months’  further imprisonment in case of default of  payment of  fine under section 5(2) read with section 5 (1)  (d)  of the  Prevention  of Corruption Act;  a  similar  substantive sentence  of  imprisonment was imposed  under  section  161, I.P.C.   Both   the  substantive  sentences  were   to   run concurrently.    The  High  Court  on  appeal  reduced   the substantive  sentence of imprisonment under both  counts  to rigorous  imprisonment for one year each.  The  sentence  of fine  and  imprisonment in default of payment  of  fine  was maintained. Shri R. L. Kohli, the learned counsel for the appellant  has addressed elaborate arguments in support of this appeal  and has severely criticised the judgments and orders of both the courts below.  Before considering the grounds of  challenge, we  may  appropriately refer to the broad  features  of  the prosecution story. One  Madan  Singh, who has appeared as P.W. 3 at  the  trial court, was holding contract for supply of vegetables to  the Sewa  Kendra run by Delhi Administration for the benefit  of beggars.   The  Store-keeper of the Kendra,  B.  G.  Goswami (appellant), is said to have told the contractor that if the latter  paid  bribe  to him, then all  sorts  of  vegetables supplied by him would be acceptable, but in case he did  not do so, no vegetable brought by him would be received.  Madan Singh  brought this demand to the notice of Shri Har  Narain Singh, P.W. 10, D.S.P., Anti-Corruption Police on  7-1-1966. The D.S.P. thereupon organised a raiding party consisting of Shri  Kewal  Ram (P.W. 1) and Shri Ram Rikh  (P.W.  5),  two officials  of the Sales-Tax Department and  some  policemen.

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Madan  Singh produced five currency notes of Rs.  10/-  each and  the  witnesses are stated to have seen  their  numbers. The  D.S.P. duly recorded those numbers in his  proceedings. Madan  Singh  is then said to have paid  the  five  currency notes to the appellant at Kiran Restaurant and the D.S.P. is stated to have recovered them from the right side pocket  of the appellant’s coat immediately thereafter. The  trial Court after considering the evidence led  in  the case,   accepted   the  prosecution   story   in   essential particulars  and relying on the presumption embodied  in  s. 4(1)  of the Prevention of Corruption Act and convicted  the appellant as already noticed. In  the High Court, the learned single Judge also felt  that the prosecution case was fully supported by the evidence  of the  complainant P.W. 3 and the two  independent  witnesses, Kewal  Ram (P.W. 1) and Ram Rikh (P.W. 5).  The  High  Court noticed  the fact that Kewal’ Ram and Ram Rikh who had  been directed by the D.S.P. to bear the conversation between  the complainant  and  the  appellant  were  not  able  to   hear distinctly such conversation as the radio in the  Restaurant was 224 being played at a very high pitch, but as both of them  have deposed  to  have themselves seen with their  own  eyes  the currency  notes  being  given  by  the  complainant  to  the appellant and the same were recovered by the D.S.P. from the same  pocket of the appellant’s coat in which  the  currency notes had been put by him after acceptance, their failure to distinctly hear the conversation was held to be  immaterial. The High Court also referred to the presumption embodied  in s.  4(1)  of the Prevention of Corruption Act  and  observed that this presumption would apply only if it was established that the appellant had actually accepted the currency notes. If, however, the prosecution evidence falls short of what is required to prove the fact of acceptance or if the money had either been planted or foisted on the appellant by means  of deception or a trick, then this statutory presumption  could not  be  invoked  for establishing  the  appellant’s  guilt. After noticing this principle the learned single Judge dealt with the appellant’s explanation.  That explanation was that the currency notes in question had been concealed within the folds  of  the bills which the appellant had to  submit  in respect  of  the  supplies of vegetables by  him  and  that, therefore, the appellant was unaware of the existence of the currency notes within the folds of the said bills.  Reliance in  support of this suggestion was sought, on behalf of  the appellant  in  the  High Court, from the  statement  of  the complainant  Madan  Singh,  P.W. 3 that  the  appellant  had refused  to accept the currency notes in the  Restaurant  in the  first instance but they were later handed over  to  the appellant  along with the bills.  The learned  single  Judge did  not believe this version for the reason that Kewal  Ram (P.W. 1) and Ram Rikh (P.W. 5) had not referred to any  such refusal  by  the  appellant and it was not put  to  them  in cross-examination  that any bills had been passed on to  the appellant  along with the currency notes.   These  witnesses having  clearly  stated  that  what was  passed  on  by  the complainant to the appellant were currency notes which  were clearly  visible  to them, the defence suggestion  was  also unacceptable.  Assuming, however, for the sake of  argument, that  the  complainant  was telling  the truth,  that  the appellant  had initially declined to accept the  bribe,  the complainant’s later statement that he actually passed on the currency notes to the appellant who accepted them with  full knowledge, although the bills also accompanied the  currency

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notes, could not be of any avail to the appellant’s defence. The  initial hesitation on the part of the  appellant  must, according  to  the High Court, have been overcome  when  the complainant  placed the currency notes inside. the folds  of the bills.  The High Court in this connection added that the witnesses  must have seen the complainant putting the  money within  the folds of the bills and then passing the same  on to  the  appellant.  The appellant was accordingly  held  to have  accepted the currency notes from the complainant  with full knowledge of the fact that what was being passed to him was money that was not legally due to him.  The  presumption under s. 4(1) of the Prevention of Corruption Act was in the circumstances  considered to be applicable to the case  with full force.  On this view, the High Court recorded the order as already noticed. Before  us,  Shri R. L. Kohli, the learned counsel  for  the appellant  has very strongly contended that the  appellant’s conviction is wholly 22 5 unsustainable  both on facts and in law.  According to  him, Madan  Singh  complainant, P.W. 3 had a grudge  against  the appellant because the supplies of defective vegetables  made by him had not been condoned.  The appellant had declined to receive  the bills for the supply of vegetables which  Madan Singh  wanted  to  hand-over to  the  appellant  personally. Madan  Singh,  it  appears, played a trick  by  placing  the currency notes in question concealed within the folds of the bills  and  handed over the bills to the  appellant  in  the restaurant.  The appellant, according to the submission, was wholly unaware of the existence of the currency notes within the  folds of those bills.  It was, therefore, not  possible to  come  to a finding that the appellant had  accepted  the currency  notes  which were later recovered from  him  along with the said bills.  The next argument strongly pressed  on behalf   of  the  appellant  relates  to   the   presumption permissible  under s. 4(1) of the Prevention  of  Corruption Act.   This presumption according to Shri  Kohli,  expressly excludes  cases  covered under s. 5 ( 1 ) (d) of  that  Act. The,  appellant’s  conviction under that clause of  s.  5(1) would,  therefore,  have  to be  examined  by  ignoring  the presumption.    Once  that  presumption  is  excluded,   the evidence  on  the  point falls far  short  of  the  required standard  for  sustaining conviction in  a  criminal  court, This, the learned counsel says, would only leave the offence under. s. 161, I.P.C. But with respect to the offence  under this  section, if the presumption is forthcoming and if  the argument  with respect to the appellant’s plea of  ignorance about  the existence of the currency notes within the  folds of  the bills is not accepted, the counsel  had  practically nothing   more  to  say  on  the  question   of   conviction thereunder.  In that event, the learned counsel made a  plea of,  what he called, mercy, by submitting that  the  offence was committed as far back as January 1966 and he has  under- one  the  harassment  of  the trial  and  of  the  appellate proceedings  during  all these years and has  been  on  bail since  1970.  This, according to the submission,  should  be considered  a sufficient punishment, particularly  when  the appellant must also lose his job. In  our  opinion, the evidence in the case  which  has  been properly  appraised  by the Special Judge and by  a  learned single  Judge of the High Court fully establishes  that  the appellant accepted the currency notes on January 7, 1966  in Kiran  Restaurant  from  Madan  Singh  and  the  same   were recovered from his possession soon thereafter by the raiding party headed by the D.S.P., Anti-Corruption, Shri Har Narain

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Singh P.W.10. We no doubt permitted the learned counsel  for the  appellant  to  take us through  the  relevant  evidence because  it was suggested that the  presumption  permissible under s. 4(1) of the Prevention of Corruption Act was not at all  attracted  in this case because there was  no  evidence with regard to the acceptance of money on which any rational or  reasonable  conclusion to that effect  would  be  based. After going through the evidence we entertain no doubt  that the  two courts below have appraised the evidence  correctly and  their conclusion is not open to further  re-examination by  this  Court by way of independent  re-appraisal  of  the evidence for itself. Now with respect to the question of presumption we feel that there  is merit in Shri Kohli’s submission with  respect  to the offence under 226  sec. 5 (1)(d) of the Prevention of Corruption Act that  the statutory ,presumption is not available with respect to  it. No doubt, this point was not raised in the courts below  and it also escaped the attention both of the Special Judge  and the  High  Court.  The decision in R. C. Mehta v.  State  of Punjab(1)  was apparently not brought to the :notice of  the courts  below.  But being a question of pure law which  goes to  the  root  of the matter  relating  to  the  appellant’s conviction   under  sec.  5(1)(d)  and  sec.  5(2)  of   the Prevention  of Corruption Act, this Court would  be  fully justified in taking notice of this argument.  The  appellant has, however, also been convicted under sec. 161, I.P.C., an offence to which the presumption embodied in s. 4(1) of  the Prevention  of  Corruption  Act  is  admittedly  applicable. According  to  the respondent, even  without  pressing  into service  the said presumption the offence under s. 5(2)  and s.  5(1)(d) is fully established by cogent evidence  on  the present record.  In view of these considerations and in view of our decision on the question of sentence to which we will advert  later, we feel it is unnecessary from the point  ,of view  of  substantial  justice to go into  the  question  of presumption  in  this  appeal.  If we  uphold  Shri  Kohli’s submission  on  this  point, then we  will  have  to  either examine the evidence ourselves or to remand the ,case to the trial court for a fresh decision whether or not the  offence under  s.  5(1)(d) read with s. 5(2) of  the  Prevention  of Corruption Act is proved beyond doubt on the evidence  after ignoring  the statutory presumption.  In this connection  it is noteworthy that the offence in question was committed  in January  1966,  more than 7 years ago. The  appellant  was released  on bail in February 1970 by this Court and now  we are in May 1973.  Criminal proceedings lasting for more than 7 years would by itself mean considerable harassment for  an accused  person.   It causes not only mental worry  but,  it also  mean,-, expense apart from attendance in Court  and  a feeling  of  agonising  suspense  caused  by  the  prolonged uncertainty of the result obstructing the continuity of  his normal  life.   ’Ale also cannot ignore the  fact bat  the appellant must lose his job. On the facts and circumstances of this case, we do not think it   would  be  fair  or  just  to  further  prolong   these proceedings by remanding the case to the trial Court.   This Court  also does not examine the evidence for  itself  under Article  136  of the Constitution except  where  the  larger interest  of justice so demands.  In the present case it  is the  same facts which constitute an offence under sec.  161, I.P.C.  and  under  s.  5(1)(d) read with  s.  5(2  )of  the Prevention of Corruption Act.      Therefore,  there  is  no question of grave failure of justice or of a guilty    party

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escaping  justice,  if we do not examine  the  evidence  for ourselves  for determining the guilt of the appellant  under s. 5(1) (d)    read  with  s.  5(2)  of  the  Prevention  of Corruption Act As  already  observed, the appellant’s conviction  under  s. 161,  I.P.C. was rightly upheld by the High Court and  there is no cogent ground made out for our interference with  that conviction.   The  sentence of imprisonment imposed  by  the High Court for both these offences 1 year and this  sentence is to run concurrently.  The only ques- (1)  A.I.R.  1971 SC 1420. 227 tion which arises is that under s. 5(1)(d) read with  s.5(2) of  the  Prevention of Corruption Act the  minimum  sentence prescribed  is rigorous imprisonment for one year and  there must   also  be  imposition  of  fine.   The   sentence   of imprisonment  can be for a lesser period but in  that  event the  Court  has  to assign special  reasons  which  must  be recorded in writing.  In considering the special reasons the judicial discretion of the Court is as wide as the demand of the  cause  of  substantial justice.  Now  the  question  of sentence  is  always a difficult question, requiring  as  it does,  proper  adjustment and balancing  of  various  consi- derations,  which weigh with a judicial mind in  determining its  appropriate quantum in a given case.  The main  purpose of  the  sentence broadly stated is that  the  accused  must realise  that  he has committed an act. which  is  not  only harmful  to the society of which he forms an  integral  part but is also harmful to his own future, both as an individual and  as a member of the society.  Punishment is designed  to protect society by deterring potential offenders as also  by preventing  the guilty party from repeating the offence;  it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a  whole. Reformatory,  deterrent and punitive aspects  of  punishment thus  play  their  due  part  in  judicial  thinking   while determining  this question.  In modern civilized  societies, however, reformatory aspect is being given somewhat  greater importance.  Too lenient as well as too harsh sentences both lose  their  efficaciousness.  One does not  deter  and  the other  may frustrate thereby making the offender a  hardened criminal.    In  the  present  case,  after   weighing   the considerations  already noticed by us and the fact  that  to send  the  appellant back to jail now after 7 years  of  the annoy  and harassment of these proceedings when he  is  also going  to lose his job and to earn a living for himself  and for  his family members and for those dependent on  him,  we feel that it would meet the ends of justice if we reduce the sentence  of  imprisonment  to that  already  undergone  but increase  the sentence of fine from Rs- 200/- to Rs.  400/-. Period  of imprisonment in case of default will  remain  the same. This appeal is accepted in part in the terms just stated. V. P.                            Appeal allowed in part. 2 2 8