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CASE NO.: Appeal (crl.) 82  of  2001 Special Leave Petition (crl.)   3028     of  of

PETITIONER: STATE OF JAMMU & KASHMIR

       Vs.

RESPONDENT: VINAY NANDA

DATE OF JUDGMENT:       16/01/2001

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

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     SETHI, J.

     Leave  granted.   Corruption  at  any  level,  by  any person,  of  any  magnitude is condemnable which  cannot  be ignored by the judicial courts, when proved.  No leniency is required to be shown in proved cases under the Prevention of Corruption  Act which itself treats the offences under it of a  special nature to be treated differently than the general penal  offences.  The convicts of the offences under the Act are  to  be  dealt with heavy hand and  deterrent  rod.   No populous  or  sympathetic approach is needed in such  cases. The only exception is the existence of special circumstances for  awarding the minimum sentence.  The important point  of law  involved  in  the present appeal is as to  whether  the benefit of Jammu & Kashmir Probation of Offenders Act can be extended  to  the  convicts  under   the  Jammu  &   Kashmir Prevention  of  Corruption  Act,   Svt.   2006  (hereinafter referred  to  as "the Act").  The facts giving rise  to  the determination of the question noted hereinabove are that the respondent,  when  posted  as  cashier  in  the  Procurement Department  of  the State of Jammu & Kashmir,  tampered  the record  regarding the carriage of store articles to and  fro through  RTC vehicles.  The word "RTC" was changed into "one RTC  Vehicles" and the words "RTC was changed into the words "BTC".   After  withdrawing  Government   money  for  making payment  to the carriers, the respondent was alleged to have misappropriated  the  amount  with  the  connivance  of  his superior  officers.   It  was  specifically  stated  in  the complaint  filed against him that with the connivance of the Account Officer Shri Babu Ram Sharma the respondent encashed a   cheque   of   Rs.89,000/-    from   the   Treasury   and misappropriated  the  same.   On receipt  of  the  complaint against  the respondent, a preliminary enquiry was conducted during  which  it  transpired  that   accused  had  in  fact misappropriated the amount upon which a regular FIR No.23 of 1987 was registered and investigation commenced.  During the

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investigation  it  was found that Cheque No.0547185  for  an amount    of    Rs.97,952.11    was    encashed    by    the respondent-accused  but instead of remitting the amount into the  Treasury, he misappropriated the same.  To conceal  the embezzlement  he  defalcated the account by making  a  false entry of remittance in cash book at Page No.41.  The accused confessed  the  non remittance of the account and when  show cause  notice was issued to him on 1.3.1985, he refunded the said  amount  in  different  instalments  during  the  years 1985-87.  After completion of the investigation charge-sheet was  filed  in the court of Special Judge, Anti  Corruption, Jammu  who charged him for the commission of offences  under Section  5(2)  of  the Act and Sections 409 and 468  of  the Ranbir  Penal Code vide its order dated 1st May, 1991.   The accused  pleaded not guilty to the charge and claimed to  be tried.   To  prove  its case, the prosecution  had  examined S/Sh.   Davinder Singh, Shambu Nath, Dharampal, Om  Parkash, Nertar  Parkash, Babu Ram, Romesh Kumar Bali, Khajour Singh, Suram  Singh,  Bal Krishan, Jagdish Chander, Radhey  Shayam, Kuldeep  Khoda,  R.P.  Abrol and Ranbir Singh as  witnesses. In  his statement recorded under Section 342 of the Code  of Criminal  Procedure  corresponding  to Section  313  of  the Central  Criminal Procedure Code, the respondent denied  all the  allegations.   After critically examining the  evidence led  in  the  case,  the Special Judge,  vide  an  elaborate judgment  found  the  respondent  guilty  of  commission  of offences  under  Section 5(1)(c) of the Act and Section  409 and  468 of the Ranbir Penal Code.  Upon his conviction  the respondent  was  sentenced to undergo imprisonment  for  one year   on  each  count  besides   paying  a  total  fine  of Rs.16,000/-.   All  the  sentences   were  directed  to  run concurrently.   Not  satisfied  with  the  judgment  of  the Special  Judge,  the  respondent filed an appeal  which  was disposed  of  by  the  judgment impugned  in  this  case  by upholding  the  conviction of the respondent but giving  him the benefit of probation under the Jammu & Kashmir Probation of  Offenders  Act.  He was directed to furnish a  bond  for maintaining  good conduct for a period of three years and to pay  costs in terms of Section 5(1)(b) of the said Act which were  assessed at Rs.2000/-.  The costs were to be deposited with  the  Registrar  (Judicial) within a  period  of  three months.   In case that direction was not complied with,  the respondent  was  ordered  to suffer jail  sentence  for  six months.   Feeling  aggrieved  by the judgment  of  the  High Court,  the  present  appeal has been filed  by  the  State. However,  the  respondent has not challenged the finding  of fact  arrived  at by the High Court.  In his  judgment,  the learned  Single  Judge of the High Court held:   "The  facts which are undisputed are:

     i.   That  a sum of Rs.97,952.11 was withdrawn by  the appellant  by  self  cheque No.0547185.  This  was  done  on 30.8.1984.

     ii.   The  aforementioned amount was not deposited  in the account.

     iii.   That  a  Senior  Officer  namely  Babu  Ram  on checking  the  account found that the aforementioned  amount though withdrawn was not deposited in the State Treasury.

     iv.   That  an  enquiry   was  held.   Thereafter  the appellants  deposited the amount on various dates.  This was of  course  done before the present  criminal  investigation started in this case."

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     The  plea  of the respondent that while he was on  his way to deposit the entire amount in the Jammu & Kashmir Bank a  sum  of Rs.40,000/- was lost, was held to have  been  not substantiated.  Deposits were proved to have been made after the  factum of withholding the money by the respondent  came to  the notice to his superior officer, Sh.Babu Ram  Sharma. The  trial court as well as the High Court has  concurrently held  the accused guilty for the commission of the  offences with  which  he  was charged.  However, the High  Court  was persuaded  to  take a sympathetic view in the matter on  the existence  of circumstances justifying a lenient action  and benefit  of  the Jammu & Kashmir Probation of Offenders  Act was  given as noticed earlier.  It appears that the  learned Single  Judge  of  the High Court was not  apprised  of  the relevant  provisions  of  the Jammu & Kashmir  Probation  of Offenders  Act,  1966 (hereinafter referred to as "the  1966 Act")  which  resulted  in  the   passing  of  the  judgment impugned.   Sub-section  (3)  of Section 1 of the  1966  Act provides  that:   "It shall come into force on such date  as the  Government  may,  by  notification  in  the  Government Gazette,  appoint  and different dates may be appointed  for different parts of the State."

     The  Act  has been enforced in the Cities of  Jammu  & Srinagar  w.e.f.   15th May, 1969 by SRO 267 dated 3rd  May, 1969  and in the Districts of Jammu & Srinagar w.e.f.   15th January,  1970 by SRO 23 dated 15th January, 1970.   Despite its  extension to whole of the State of Jammu & Kashmir  its provisions  are not shown to have been applied to the  other parts  of  the  State.  Section 18 of the  said  Act  reads: "Saving  of  operation of certain enactments:   Nothing,  in this  Act shall, affect the provision of sub-section (2), of section  5 of the Jammu and Kashmir Prevention of Corruption Act  Svt.   2006 or the supersession of Immoral  Traffic  in Woman  and Girls Act, 1956 (Central Act of 1956) or any  law in force in the State relating to Juvenile Offenders."

     In  view  of unambiguous and categoric  provisions  of Section  18  of the Jammu & Kashmir Probation  of  Offenders Act, it is incumbent upon us to hold that the High Court was not  justified  in giving the respondent the benefit of  the Jammu  & Kashmir Probation of Offenders Act as the said  Act was  not applicable to offences under the Act.  We are  sure that  had the provisions of the 1966 Act been brought to the notice  of the High Court, the order impugned could not have been  passed.   The  judgment impugned in  this  appeal  is, therefore,  liable  to  be  set   aside.   Faced  with  this situation,  the learned counsel for the respondent submitted that  the  case  be  remitted back to  the  High  Court  for deciding it afresh.  We are not impressed by this submission inasmuch  as  concededly  the respondent has not  filed  any appeal  against  the finding of conviction recorded by  both the courts against him.  Under the circumstances of the case no  useful  purpose would be served by remanding  the  case. Mr.Jaspal  Singh, learned Senior Advocate appearing for  the respondent  then  submitted  that  as  there  exist  special circumstances,  the  respondent be not sent to the  jail  at this  stage  particularly  when  he has  complied  with  the directions of the High Court.  To appreciate this submission a  reference  has  to be made to the provisions of  the  Act prescribing sentence upon conviction under it.  Section 5(2)

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of  the  Act, as substituted by Act No.9 of 1993,  provides: "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 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 but not less than six months."

     It is the mandate of law that a person convicted under the Act can be sentenced for a term upto seven years and not less  than one year.  According to the proviso, the sentence can  further be reduced to six months only "for any  special reasons recorded in writing".  Relying upon the judgments of this  Court  in Aditya Nath Pandey v.  State of U.P.   [2000 SCC  (Cri.)  1206,  Vidyadhar Ganesh Lanjekar v.   State  of Maharashtra  [1993 Cri.Law Journal 3667] and Ghulam Din Buch &  Ors.   v.  State of J & K [1996 (9) SCC 239] the  learned Senior  Counsel  appearing for the respondent has  submitted that  in view of peculiar and special circumstances of  this case,  the ends of justice would be met only by awarding the sentence  of fine to his client without sending him to  jail at  this  stage.   However,  the perusal  of  the  aforesaid judgments  indicates  that  in none of the cases  the  Court considered  the effect of provisions of law prescribing  the minimum  sentence upon conviction under the Act.  Where  the mandate  of  law is clear and unambiguous, the Court has  no option  but to pass the sentence upon conviction as provided under  the  statute.   In Ghulam Din Buch’s case  the  Court considered the scope of Section 5(2) of the Act prior to its amendment,  when  it observed:  "Though the proviso  permits not to impose a sentence of imprisonment at all and confines the sentence to fine only, we do not think if the present is a  case  where the punishment to be awarded should  be  only fine,  as  any  softness  in this regard  would  produce  an undesirable  result,  namely, encouragement to  adoption  of corrupt  means  by  public servants which has indeed  to  be checked,  and not allowed to be encouraged.  Keeping in view all  the attending circumstances, we are of the view that  a sentence  of  RI for two months would be adequate  sentence, apart from the fine of Rs.15,000/-."

     The   mitigating   circumstances  in    a   case,   if established, would authorise the Court to pass such sentence of imprisonment or fine which may be deemed to be reasonable but not less than the minimum prescribed under an enactment. On  behalf  of  the  respondent it has been  argued  in  the alternative  that  upon conviction the minimum  sentence  in terms  of  proviso  to sub-section (2) of Section 5  of  the Court  be  awarded  in the case.  For imposing  the  minimum sentence  the court has to record special reasons.  ’Special reasons’  have  to  be distinguished from ’good’  or  ’other reasons’.   The  fact  that  the  convict  had  reached  his superannuation  is not a special reason.  Similarly pendency of  criminal case for over a period of time can also not  be treated  as  a special reason.  Prolonged litigation in  the country  is  admittedly a general reason in criminal  cases. This  Court under similar circumstances in Jagjeevan  Prasad v.  State of M.P.  [2000 (8) SCC 22] observed:  "Yet another consequence  would be that if any public servant succeeds in protracting  the  criminal  proceedings  to  the  stage   of superannuation  he  can also claim the benefit  of  "special

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reasons",  if the High Court’s reasoning is to be  accepted. We  find  the High Court’s approach not only  erroneous  but prenicious,  and  therefore, impermissible in law.   Such  a ground  cannot  by any stretch of imagination be treated  as "special reasons"."

     The  respondent  has filed an affidavit in this  Court stating  therein that he was facing the trial since 1987 and the  amount  allegedly  misappropriated   has  already  been deposited  by  him with the Government.  He submits to  have been  punished  departmentally  vide  orders  of  the  Chief Engineer  dated  13.1.1993.  He claims to be the only  bread earner  in  the  family  who has to support  his  wife,  one unmarried  daughter and two sons aged about 18 and 17 years. None  of  the  circumstances, stated in  his  affidavit,  by itself  constitute a "special reason".  However, keeping  in view  the general conspectus of the case, we feel that under the  totality of the circumstances narrated, the  respondent has  made out a case for invoking the proviso to Sub-section (2) of Section 5 of the Act.  We have further been persuaded to  give him such a benefit in view of the observations made in  his favour by the trial court in para 55 of its judgment and  the  High  Court in the judgment  impugned  before  us. Under  the  circumstances, the appeal is allowed by  setting aside  the impugned judgment of the High Court and restoring the   judgment   of   the  trial    court   by   which   the accused-respondent  has  been  convicted and  sentenced  for offence  as noticed earlier.  However, giving the respondent benefit  of  proviso to sub-section (2) of Section 5 of  the Act,  the  sentences of imprisonment awarded to him for  all the  offences are reduced from one year to six months.  Such terms   of   imprisonments  of   the  sentences  would   run concurrently.  Sentences of fine imposed upon the respondent amounting  to  Rs.16,000/-  in  all   are  also  reduced  to Rs.5,000/-.   The respondent shall be taken into custody  to undergo  the  sentence  on all account for a period  of  six months  and  to  pay the fine in terms of the order  of  the trial  court.   In  default of the payment of fine  he  will undergo  further imprisonment as awarded to him by the trial court.