http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: MADHUKAR BHASKARRAO JOSHI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       09/11/2000

BENCH: K.T. Thomas, & R.P. Sethi.

JUDGMENT:

THOMAS, J.

Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J     Once  the prosecution established that gratification  in any  form   cash or kind  had been paid or accepted  by  a public  servant  the  court is under a legal  compulsion  to presume  that the said gratification was paid or accepted as a  motive  or  reward  to do (or  forbear  from  doing)  any official  act.  The only exception to the said rule is, when the  gratification  is  so  trivial  that  no  inference  of corruption  could in fairness be drawn on a particular  fact situation the court has no such legal compulsion to presume. Such  a  presumption  was introduced in  the  Prevention  of Corruption Act, 1947 (Act of 1947, or short) through a later amendment.   The said legal presumption was carried  forward into  the successor enactment of 1988.  In the present case, a  public servant admitted that a certain amount was paid to him by a private party, but he sought to explain that it was an  amount  otherwise  payable to him and hence  it  was  no gratification  at  all.  The trial court and the High  Court found  that  the  public servant failed to  prove  that  the amount  received  by him was legally due to  him  otherwise. The  trial court convicted him under Section 5(2) of the Act of  1947, and sentenced him to rigorous imprisonment for one year and a fine of Rs.5000/-.  Though he was convicted under Section  161 of the Indian Penal Code also the court did not award  any  separate  sentence  on that  account.   When  he appealed  to  the High Court, a single judge concurred  with the  finding and confirmed the conviction.  However, learned single  judge reduced the imprisonment limb of the  sentence to  just  one day, but enhanced the fine limb to  Rs.3000/-. The  public  servant was not satisfied with the  substantial amelioration  he  secured from the High Court.   Perhaps  he thought  that the conviction itself would magnetize  hazards in  his  service  career.   Hence he filed  this  appeal  by special  leave.   But  when the special leave  petition  was considered  we  felt, prima facie, that the  learned  single judge  reduced the sentence of imprisonment to the vanishing point  without  the  authority of law after  confirming  the conviction.  We therefore, issued notice to the appellant to show  cause why the sentence passed by the trial court shall not  be restored if the conviction remains undisturbed.  The appellant  public servant, optimistic as he was, has chosen to  pursue  the SLP to its logical end even at the  risk  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

losing  the  benefit  he  secured   from  the  High   Court. Appellant  was  a  Sub  Engineer in  the  Maharashtra  State Electricity  Board (Electricity Board, for short).  During the  relevant time he was posted at Wadia Sub Station, Pune. The  incident  which  dragged him into the  vortex  of  this criminal litigation had happened during his tenure at Wadia. It  all  happened  in  the  following  manner:   PW-1  (Prem Gangaram  Adwani)  was  a  businessmen  and  also  a  social activist.   He was engaged in carrying out contract work for electrical decorations and illumination at different places. The name of his business was Modern Decorators.  According to  the prosecution case, PW-1 secured a contract work to do illumination  and  electric decoration during  a  particular period  in  November  1979,  in connection  with  the  birth centenary  of  a  spiritual  person who was  adored  in  the locality.  As additional load of electric power was required for  the  aforesaid illumination he filed an application  to the  Electricity Board for sanction of such additional load. The  Manager  of the company (Kishan Jadhav) was deputed  to approach the appellant in connection with the said sanction. But  Jadhav reported to PW-1 that appellant was demanding  a sum  of  Rs.550/-  as reward for granting sanction  for  the additional  load.   PW-1 assured that the sum would be  paid and  on  that assurance appellant sanctioned the  additional load of power.  But the amount expected by the appellant was not  paid till December 1979.  Hence, he phoned up PW-1  and reminded  him  of his word.  It appears there was  a  little bargaining  and  appellant reduced the amount to Rs.300  and agreed  to collect that amount from the office of PW-1.   In the   meanwhile  PW-1  lodged  a  complaint  with  the  Anti Corruption  Bureau.   They  arranged  a trap  to  catch  the appellant  red-handed.   After the scheme for the  trap  was finalised appellant was informed of the readiness of PW-1 to pay  the  amount desired by him.  On 25.2.1980, around  8.00 P.M.   appellant went to the office of PW-1.  On seeing  him PW-1  switched on a concealed tape-recorder.  There was some dialogue  between  them  which  got recorded  on  the  tape- recorder.   However,  when other customers visited the  same office  appellant indicated to PW-1 through a  gesticulation about  his  readiness to accept the promised money then  and there.   It was then that PW-1 handed over the  pre-arranged currency  notes  to  the appellant.   PW-1  transmitted  the message  through  a  signal  to  the  members  of  the  Anti Corruption  Squad  who were waiting outside.  Those  persons then  rushed to the room and caught the appellant red-handed with  the  tainted  currency  notes.   Later  the  case  was charge-sheeted  against  him.  After recording the  evidence relating  to  the said trap the Special Judge  examined  the appellant  under  Section  313  of   the  Code  of  Criminal Procedure.   Appellant filed a written statement in which he said,  inter alia, that he went to the office of PW-1 on the said  night  as  he  was  requested to  reach  there  for  a discussion   about  certain  programmes   of   the   Sindhi Association in which, perhaps, both were interested.  While they  were  talking  on that subject  some  persons  reached there.   Then the appellant stood up and was about to  leave the  place, but then PW-1 paid him some money saying that it was a gift.  Appellant told him that he would not accept any such  gift.  However, appellant wanted to ask his manager as to  why  PW-1 was giving such gifts to him.  But  before  he could  actually  hand  over the money back to  PW-1  he  was caught  by the office bearers of the Anti Corruption Bureau. The  above  is,  in  substance, the statement  made  by  the appellant  in court through the written submission.  In  the light  of the said stand of the appellant we do not find the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

necessity  to  consider  the  evidence  of  the  prosecution witnesses  who  all  said that PW-1 gave the  money  to  the appellant at his office.  Of course, learned counsel for the appellant  contended  that  the testimony of PW-1,  on  that score, is not corroborated by any other independent witness. At this stage itself we may point out that there is no merit in the said contention, as there is sufficient corroboration on  that  aspect,  even apart from the  testimony  of  other witnesses  examined by the prosecution.  The very undisputed fact  that the amount had reached the hands of the appellant itself is sufficient corroboration for the testimony of PW-1 that  the amount was paid to the appellant.  Learned counsel next  contended  that  the legal  presumption  envisaged  in Section  4  of  the  Act  of  1947  can  be  drawn  only  on establishing  that gratification was paid to or accepted  by the  public  servant  and not merely that he  was  found  in possession    of   the    currency    notes   smeared   with phenolphthalein.   True  the  word  gratification  is  not defined  in  the Act of 1947.  (In the successor  enactment, the  Act  of  1988,  the  same word  is  explained  as  not restricted  to  pecuniary gratification or to  gratification estimable in money vide Explanation (b) to Section 7 of the Act of 1988).  In Blacks Law Dictionary, gratification is defined  as a recompense or reward for services or benefits given  voluntarily without solicitation or promise.  But in Oxford  Advanced Learners Dictionary of Current English the said  word  is  given  the  meaning  to  give  pleasure  or satisfaction  to.  Among the above two descriptions for the word  gratification  with  slightly differing  nuances  as between  the  two, what is more appropriate for the  context has  to be found out.  The context in which the word is used in Section 4(1) of the Act of 1947 is, hence, important.  As the  wording  on  the  relevant   portion  employed  in  the corresponding  provision  in  the PC Act  of  1988  {Section 20(1)}  is  identical  we would reproduce  that  sub-section herein:  Where, in any trial of an offence punishable under section  7 or section 11 or clause (a) or clause (b) of sub- section  (1)  of  section 13 it is proved  that  an  accused person  has accepted or obtained or has agreed to accept  or attempted  to  obtain for himself, or for any other  person, any  gratification  (other than legal remuneration)  or  any valuable thing from any person, it shall be presumed, unless the  contrary  is  proved, that he accepted or  obtained  or agreed  to accept or attempted to obtain that  gratification or  that valuable thing, as the case may be, as a motive  or reward such as is mentioned in section 7 or, as the case may be,  without  consideration or for a consideration which  he knows to be inadequate.

   The  premise to be established on the facts for  drawing the  presumption is that there was payment or acceptance  of gratification.   Once  the said premise is  established  the inference  to  be drawn is that the said  gratification  was accepted as motive or reward for doing or forbearing to do any  official act.  So the word gratification need not  be stretched  to  mean reward because reward is the outcome  of the  presumption which the court has to draw on the  factual premise  that there was payment of gratification.  This will again  be  fortified  by looking at the collocation  of  two expressions  adjacent  to each other like gratification  or any valuable thing. If acceptance of any valuable thing can help  to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word  gratification must be treated in the context to mean any  payment  for giving satisfaction to the public  servant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

who received it.

   In   Mohmoodkhan  Mahboobkhan  Pathan   vs.   State   of Maharashtra {1997(10) SCC 600} this Court has taken the same meaning  for  the word gratification appearing in  Section 4(1)  of  the  PC  Act  of 1947.   We  quote  the  following observations:

   The   primary  condition  for   acting  on  the   legal presumption  under  Section  4(1)of  the  Act  is  that  the prosecution  should  have  proved   that  what  the  accused received was gratification.  The word gratification is not defined  in  the  Act.  Hence it must be understood  in  its literal   meaning.   In  the   Oxford   Advanced   Learners Dictionary  of Current English, the word gratification  is shown  to have the meaning to give pleasure or satisfaction to.   The  word gratification is used in Section 4(1)  to denote   acceptance   of  something  to  the   pleasure   or satisfaction of the recipient.

   We,  therefore,  repel  the contention  of  the  learned counsel  that prosecution has a further duty to prove beyond the  fact  that  PW-1  had paid the demanded  money  to  the appellant  for  enabling  it to lay the hand  on  the  legal presumption  employed  in the Prevention of Corruption  Act. We  may  point out that the defence did not even attempt  to prove  that  the  amount received by the appellant  was  not accepted  as a reward or motive for the official act done by him,  except the ipse dixit of the appellant, that too  made at  the  fag  end  of the trial when he  put  in  a  written statement  of his defence.  Hence no exception can be  taken to  the  conviction  passed  by the trial  court  which  was concurred  by the High Court in respect of the offence under Section 5(2) of the Act of 1947.

   Dealing with the sentence aspect learned single judge of the  High  Court has counted two aspects.  One is  that  the counsel  pointed out that the appellant was under suspension for  7  years  and  the High Court had  suspended  both  the conviction and sentence during the pendency of the appeal in the  High Court and that he was reinstated and continued  as such  till  the  date of the impugned judgment  and  in  the meanwhile  he  was promoted to the post of Junior  Engineer. Second is that another single judge of the Bombay High Court (Saldhana,  J.) had reduced a sentence of imprisonment  from two  years to just one day, and increased the fine  sentence from  Rs.1,000/-  to  Rs.35,000/- for a similar  offence  in another  case.   That decision has been reported  as  Vasant Maruti  Waikar  vs.  State of Maharashtra (1991  Maharashtra Law  Journal  1318).  The said decision was relied on  as  a precedent.

   Learned  counsel  for the appellant submitted before  us that  the court has powers to impose any sentence below  the minimum  prescribed.   He cited two decisions of this  Court [Balaram  Swain vs.  State of Orissa, (AIR 1991 SC 279, M.O. Shamsuddin  vs.  State of Kerala (1995 3 SCC 351)].  In both the  said  decisions this Court had reduced the sentence  to the  period of imprisonment already undergone by the  public servants  in  consideration  of  the long  duration  of  the pendency  of  criminal  proceedings  against  the  convicted persons.   We perused these decisions and it is difficult to find  out therefrom as to the precise period of imprisonment awarded by this Court since there is no indication as to the period  during  which the convicted persons were in jail  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

those  cases.   It is necessary to remind ourselves  of  the scope  of  the power of the court for reducing the  sentence from  the  minimum  fixed in the  statute.   We,  therefore, extract Section 5(2) of the Act of 1947.

   Any  public  servant  who commits  criminal  misconduct shall be punishable with imprisonment for a term which shall not  be  less  than one year but which may extend  to  seven years  and shall also be liable to fine:  Provided that  the court  may,  for  any special reasons recorded  in  writing, impose a sentence of imprisonment of less than one year.

   It  must be noted that in the corresponding provision of the Act of 1988 [Section 13(2) of that Act] there is no such proviso  as in Section 5(2) of the earlier Act and no  power whatsoever  is given to the court to impose a sentence  less than  the  minimum,  even if there are special  reasons  for doing  so.   The  Parliament fixed the minimum  sentence  of imprisonment  of  one  year even under the Act  of  1947  by making  an amendment to it in 1958 for which the legislative language  is apparently peremptory i.e.  shall not be  less than  one  year.   The  proviso is in the form  of  a  rare exception  by  giving  power to the court for  reducing  the imprisonment  period  below  one year only  when  there  are special  reasons  and the law required that those  special reasons must be recorded in writing by the court.

   When  corruption  was sought to be eliminated  from  the polity  all  possible stringent measures are to  be  adopted within  the  bounds of law.  One such measure is to  provide condign  punishment.  Parliament measured the parameters for such  condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on  other  public servants who are prone to  corrupt  deals. That  was precisely the reason why the sentence was fixed as 7  years  and  directed  that even if  the  said  period  of imprisonment  need  not be given the sentence shall  not  be less than the imprisonment for one year.  Such a legislative insistence  is  reflection of Parliaments resolve  to  meet corruption  cases with very strong hand and to give  signals of  deterrence as the most pivotal feature of sentencing  of corrupt  public  servants.  All public servants were  warned through  such  a  legislative measure  that  corrupt  public servants  have to face very serious consequences.  If on the other  hand any public servant is given the impression  that if  he  succeeds in protracting the proceedings  that  would help  him  to  have the advantage of getting  a  very  light sentence  even if the case ends in conviction, we are afraid its  fallout  would afford incentive to public servants  who are  susceptible to corruption to indulge in such  nefarious practices with immunity.  Increasing the fine after reducing the  imprisonment  to a nominal period can also  defeat  the purpose as the corrupt public servant could easily raise the fine amount through the same means.

   In  the present case, how could the mere fact that  this case  was  pending for such a long time be considered  as  a special  reason?  That is a general feature in almost  all convictions  under the PC Act and it is not a speciality  of this  particular case.  It is the defect of the system  that longevity  of  the  cases  tried under the  PC  Act  is  too lengthy.   If  that  is  to be regarded  as  sufficient  for reducing the minimum sentence mandated by the Parliament the legislative  exercise would stand defeated.  The High  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

unfortunately did not look at the sentencing aspect with the seriousness  which  the  Parliament   wanted  the  court  to exercise  in  such  situations.   In  our  view,  there  was absolutely  no  special  reason  in this  case  as  for  the appellant to entitle to get a sentence less than the minimum prescribed  by  law.  Accordingly, we restore  the  sentence passed  by the trial court on the appellant for the  offence under Section 5(2) of the Act of 1947.