Full Judgment Text
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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.