B. G. GOSWAMI versus DELHI ADMINISTRATION

B. G. GOSWAMI

DELHI ADMINISTRATION May 4, 1973

[K. K MATHEW AND I. D. DUA, JJ.J

P1·erc11tion of Corruption Act (2 of 1947), Ss. 4(1), 5(1) a1t:l (2)-Statu. tory presu111plio11, if applicable.

Practicc-5entence-Principles for imposing sentence of ilnpriso1une1u,

(a) \Vith 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 A-;t, against the accused, is 'not available.

R. C. 1'.fellla v. State of Punjab, A.I.R. 1971 S.C. 1420, referred to.

{b) Under s. 5{1){d) read \vith s. 5(2), the minimum sentence prescribed is one year RI and sentence for 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 offe.nces, and the sentences of imprisonn1ent were directed to run concurrently. The High Court in appeal. reduced the sentence to 1 year R.I. and maintained the fin~. The lli~h Court and the trial Court relied on the statutory presun1ption.

In appeal to this Court,

· HELD : (i) The offence was committed 7 years ago and criminal proceedings lasting for such Jong time would by itself mean considerable harassn1cnt 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 3tatutory presumption. f226E~F]

(2) This Court also docs not exafnine the evidence for itself in appeals. under Art. 136 except when interests of justice so demand. In the i!'.'stant 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 Corruption Act is ad1nittedly applicable. There is thus no question of grave. failure of justice or of ~uilty person escaping justice. if this Court does not exan1ine the evidence tor determining the guilt of the ·appellant under Ss. 5(1) (d) and 5(2) of the' Act. f226B-C, F-Gl (3) The question of sentence is always difficult question requiring proper adjustment of the reforn1atory, deterrent and punitive aspects of punish-ment. In the instant case. considering the facts .that the appellant is going to lose his iob and has to earn Jiving for himself and members of his family, the ends of justice· would be met by imposing . fine instead of sending him back to jail (the appe11ant was on bail) after 7 years of agony and harassment of criminal proceedings. [227 A-B, D-E~ · 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

DUA, J.-The appellan( in this appeal by special leave rhallenges 1he judgment and order of 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(l)(d) of the Pre-vention of Corruption Act, 1947 and under sec. l61, I.P.C. The Special Judge convicting the appellant by his order dated May 24, 1967, had imposed sentence of rigorous imprisonment for years and also imposed 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; similar subs-, tantive 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 imprison-ment under both counts to rigorous imprisonment for one year .each. The sentence of fine and imprisonment in default of paym~nt of fine \V-35 ;.naintained. ·

Shri R. L. Kohli, the learned counsel for the appellant has addressed elaborate arguments in support of this appeal and has severely criti· ciscd the judgments and orders of both the courts below. Before con· sidcring 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-!<.eeper 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 wgeta- . bles 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. T11e D.S.P. thereupon organised raiding party consisting of Shri Kewal Ram (P.W. I) and Shri Ram Rikh (P.W. 5); t1vo officials of the Sales-Tax Department and some policemen. 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 tl1e 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 there-after. . ·

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 an<'! convic.ted the appellant as already noticed.

In the High Court, the learned single Judge also felt that the prose-cution 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 hear the conversation between the complainant and the appellant were not able to hear distinctly such conversation as the radio in the Restaurant was

being played at 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 compiainant 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 liim 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 (l) 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 evidrnce 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 trick, then this statutory presumption could not be in-voked for establishing the appellant's guilt. After noticing this princi-pie 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 J udgc did not believe this version for the reason that Kewal Ram (P.W. I) and Ram Rikh (P.W. 5) had not referred to any such refusal by the appellant and it was not put to them hl cross-examination that any bills had been passed on to the appellant along witli the currency notes. These witnesses having_ clearly stated that what wa> passed on by the complamant 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 appellanr had initially declir.ed to accept the bribe, the complainant's later statement that he actually pac,scd on the currency notes to the appellant who accepted them with full knowledge, although the bills -also accompanied the currency 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 overwme when the complainant placed the curre11cy 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 acC<Jrdingly 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 (I) of the Prevention of Corruption Act was in the circumstances considered to be applicabfe to the case \Vith 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 wl'rolty·

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unsustainable both on facts and in law. According to him, Madan Singh complainant, P.W. 3 had grudge against the appellant because the supplies of defective vegetables made by him had not been con-doned. The appellant had declined to receive the bills for the supply of vt·getables which Madan Singh want~d to hand-over to the appellant personally. Madan Singh, it appears, played 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 cf the currency notes within the folds of those bills. It was, therefore, not possible to come to finding that the appellant had accepted the cur-r.:mcy 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, ex, pressly excludes cases covered under s. 5(1) (d) of that Act. The appellant's conviction under that clause of s. 5 (1) would, therefore, haw to be examined by ignoring the presumption. Once that presum-tion is excluded, the evidence on the point falls far short of the required standard for sustaining conviction in criminal court. This, the learn-D ~d counsel ~ays, would only leave the offence under s. 161, I.P.C. But with respect to the offence under this section, if the presumption is. foFthcoming 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 learn-ed coumel made plea of, what he called, mercy, by submitting that th~ offence was committed as far back as January 1966 and .he has undergone- the harassment of the trial and of the appellate proceedings during all these years and has been on bail since 1970. This. accord-ing to the submission, should be considered sufficient pu!!ishmcnt, particularly when the appellant must also lose his job.

In our opinion, the evidence in the case which has been properly aopr2ised by the Special Judge and by 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 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 re~ard 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 evidenee correctly and· their conclusion is not open to further re-examination bv 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·

[ 1974 J 1 S.C.R.

·sec. 5 ( 1 ( d) of the Prevention of Corruption Act that the s~atut~ry presumption is not available with respect to it. No doubt, this p~mt 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 question of pure law which _goes to the root of the matter relating to the appellant's convict~on under sec. 5(1)(d) and sec. 5(2) of the Prevention of_Corrupt10n Act, this Court would be fully justified in taking notic~ of this argu-ment. The appellant has, however, also been convicted under sec. 161, J.P.C., an offence to which the presumption embodied in s. 4(1) of the Prevention of Corruption Act is admittedly applicable. Accor-ding to the respondent, even without pressing into service the said presumption the offence under s. 5(2) and s. 5(1){d) is fully estab-lished by cogent evidence on the presenf record. In view nf 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 jn 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 fresh decision whether or not the offen~e Under s. 5(l)(d) read with s. 5(2) of the Prevention of Corruptio~ Act is proved beyond doubt- on the evidence after ignoring the st~tutory 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 consiclerable- harassment for an accused person. It causes not only mental worry but it also means expense apart from attendance in Court and feeling of agonising suspense caused by the prolonged uncertainty of the result obstructing ·the continuity of his normal life. We also cannot ignore the fact _that 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 remand-ing the case ro 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, J.P.C. and under s. 5(1){d) read withs. 5(') of the Prevention of Corruption Act. Therefore, there is no question of grave failure of ~ustice or of gUilty party escaping justice, if we do not examine the evi\lence 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, 1.P.C. was righ.tly upheld by the High Court and there is no cogent ~round made out for our interference with that conviction. The sen-. ·tence of imprisonment imposed by the High Court for bo•b these offen-ces is 1 year and this sentence is to run concurrently. The only ques-

(1 ~ \ T. 'l 1?71S':':I1.11.

lion which arises is that under s. 5(l}(d) read with s. 5(2) of the-Prevention of Corruption Act the miniJllum sentence prescri~ed ~s. rigorous imprisonment for one year and there must also be 1mpos1-tio11 of fine, The sentence of imprisonment can be for lesser period but in that event the Court has to assign special reasons which m.ist be recorded in writing. In considering the special teasons the judicial discretion of the Court is as wide as the demand of the cause of substan-B tial justice. Now the question of sentence is always difficult question, requiring as it does, proper adjustment and balancing of various consi-d~rations which weigh with judicial mind in determining its app1<}priate quantum in given case. The main purpose of the sentence bw1dly Staled is that the accused must realise that he has committed an act whi.::h 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 member of the so:iety. Punishment is designed to protect society by deterring potential offenders as a!so by preventing the guilty party · from repeating the offence; it is also designed to reform the offender and re-claim him as law abiding citizen for the good of the society as whole. Reformatory, deterrent and punitive aspects of punish-ment thus play their due part in judicial thinking while determining this question. In modern civilized rocieties, however, reformatory aspect· is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One docs not ··deter and the other may frustrate thereby making the offender hardened criminal. In the present case, after weighing the considera-tions already noticed by us and the fact that to send the appellant back to jail now after 7 years of the agnoy and harassment of these proceedings when he is also going to lose his job and to- earn 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 alre1dy undergone but increase the sentence of fine from Rs· 200/- to Rs. 400/-. Period of imprison-ment in case of default will remain' the same.

This appeal is accepted in .part in the terms just stated.

Appeal allowed in part.