Full Judgment Text
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CASE NO.:
Appeal (crl.) 544 of 1997
Appeal (crl.) 546 of 1997
PETITIONER:
Shiv Nandan Dixit
RESPONDENT:
State of U.P.
DATE OF JUDGMENT: 19/12/2003
BENCH:
N. Santosh Hegde & B.P. Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
The two appellants in these appeals were convicted by
the Special Judge, Anti-Corruption (Central), U.P., Lucknow
for offences punishable under sections 120B IPC, 161, 5(1)(d)
read with section 5(2) of the Prevention of Corruption Act,
1947 (for short ’the Act’) and sentenced to undergo 2 years’ RI
under section 161 IPC and section 5(1)(d) read with section
5(2) of the Act, and were further directed to pay a fine of
Rs.500 for an offence punishable under sections 120B and 161
IPC and section 5(2) of the Act; in default to undergo further
sentence of 6 months’ RI. In an appeal filed by the appellants,
the High Court of Allahabad, Lucknow, while dismissing the
said appeals, reduced the sentence to one year RI. It is against
the said order of the High Court that the two appellants are
before us in these two appeals. The basic facts necessary for the
disposal of these appeals are as follows :
At the relevant time, Suleman Tayyab A-1 was working
as a LDC in ’B’ Ward, Circle II, Income Tax Office, Lucknow
and also as a Record Keeper. S.N. Dixit A-2, the appellant in
the connected appeal before us was then working as a Class IV
employee in the same office and was assigned the work of a
’Farash’. One Surendra Kumar PW-3 who was a partner in the
firm M/s. Singhal Paper Products had applied to the ITO
concerned to return the copy of the partnership deed filed in the
said office since he wanted the same for obtaining a loan from a
Bank. An application in this regard was moved on 21.5.1980 on
which the concerned ITO passed an order on 26.5.1980 to
return the said document after retaining a copy on record. This
order of the ITO was sent to A-1 through A-2 for compliance. It
is stated that on receiving the said order, A-1 told PW-3 that he
was very busy on that day, hence, he will not be available to
trace out the document immediately. However, PW-3 impressed
upon A-1 as to his urgency in getting the document whereupon
A-1 allegedly demanded Rs.50 as bribe to return the document
on the same day. On PW-3 agreeing to pay the said sum of
money, A-1 told him that the document in question would be
returned to him by about 5.30 p.m. that day at India Coffee
House, Hazratganj and that he should pay the amount of Rs.50
when the document is delivered. The further case of the
prosecution is though PW-3 agreed to pay the said amount, he
was angered by the said demand hence he went and lodged a
complaint Ex. Ka-7. The S.P./CBI/SPE, Lucknow, ordered
registration of the case upon which FIR Ex. Ka-9 was
registered. Said SP/CBI entrusted the case to Inspector R.K.
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Singh, PW-6, for laying a trap. For the purpose of having
independent witnesses, the investigating agency wrote a letter
to the Central Excise Department to depute two Inspectors to
the office of the CBI on the same day. The Assistant Collector,
Central Excise then directed V.K. Saxena PW-1 and S.L.
Banodha PW-2 to attend the CBI office on the same day which
they did at about 4.15 p.m. After recording the statement of
PW-3, PW-6, the Inspector directed PW-3 the complainant to
procure the money which was to be paid as bribe and on receipt
of 5 ten-rupee notes the said notes were treated with
phenolphthalein powder and PW-3 was instructed to give the
said notes to A-1 when he receives the document. At about 5.25
p.m. when PW-3 and rest of the party had taken their allotted
place in and near the Coffee House, they noticed A-2 coming
over to PW-3 and handing over the document to him and
obtaining a receipt for the same and immediately thereafter it
was noticed that he collected the money also. On being
signalled the concerned officers approached A-2 and identified
themselves at which point of time it is stated that A-2 gave the
money to PW-6. Since at that place a large number of people
had gathered they took A-2 and PW-3 along with other
witnesses to the nearby fire station and on testing the fingers of
A-2 by phenolphthalein test, it was noticed that A-2 had
handled the said currency. It is based on the said result of the
trap and further investigation conducted by the CBI, a
chargesheet was filed against the appellants herein and as stated
above, the two courts below have found the appellants guilty
and convicted them.
Mr. P P Malhotra and Mr. S C Maheshwari, learned
senior counsel appearing for the appellants, firstly contended
that in view of the provisions of section 196(2) of the Code of
Criminal Procedure, 1898 (the Code), the trial court could not
have taken cognizance of the offence punishable under section
120B IPC without the consent in writing of the State
Government or the District Magistrate concerned. Cognizance
of the offence punishable under section 120B IPC can be taken
without consent under the aforesaid provisions only if the
offence is one punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or upwards. In
the instant case, according to them, since no such consent was
taken, the trial court could not have taken cognizance of the
offence punishable under section 120B IPC. Section 120B IPC
makes it abundantly clear that whoever is charged of a criminal
conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of
two years or upwards, shall where no expressed provision is
made in the Code, for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.
In the instant case the appellants were charged of having
conspired to commit an offence punishable under section 161
IPC.
A mere perusal of section 161 IPC and section 5(1)(d) of
the Act would make it obvious that the maximum punishment
which can be imposed under section 161 IPC (as it then stood)
is imprisonment of either description which may extend to three
years or with fine or with both. For the offence under section
5(1)(d) of the Act, the punishment prescribed is 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. Thus, the
conspiracy to commit either of the offences was punishable
with imprisonment for a term exceeding two years rigorous
imprisonment and, therefore, in our view section 196(2) of the
Code had no application because in respect of both the
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offences, the Court had jurisdiction to pass a sentence of over
two years’ rigorous imprisonment. The submission that it was
permissible for the Court to award simple imprisonment for any
term subject to the maximum prescribed and, therefore, section
196(2) of the Code was applicable, cannot be accepted. Equally
without substance is the submission that the conspiracy alleged
must be compulsorily punishable with rigorous imprisonment
for a term exceeding two years, leaving no discretion in the
Court to pass a lesser sentence. The true test is whether the
conspiracy alleged was punishable with a term of imprisonment
exceeding two years’ rigorous imprisonment and, as we have
noticed earlier, it was so in the instant case having regard to the
punishment prescribed for the offences under section 5(1)(d) of
the Act as well as section 161 IPC. Therefore this argument of
the appellants has to be rejected.
It was then contended that the presumption of guilt
available to the prosecution under section 4 of the Act would
not be available for an offence punishable under section 5(1)(d)
of the Act. This argument is based on the language of section
5(1)(d) which reads thus :
"5. Criminal misconduct.\027(1) A public servant is
said to commit the offence of criminal misconduct
--
(a) to (c) x x x
(d) if he, by corrupt or illegal means or by
otherwise abusing his position as public servant,
obtains for himself or for any other person any
valuable thing or pecuniary advantage."
According to learned counsel for the appellants, since
according to the prosecution case itself the bribe in question
was not received by A-1 himself, the said presumption is not
available to the prosecution. This argument again has to be
noted only to be rejected because that is not the intendment of
section 4 or 5(1)(d) of the Act. The words "obtains for himself"
connote not only receiving the bribe personally but receipt of
any bribe either directly or indirectly. The interpretation given
by learned counsel for the appellants to section 5(1)(d) if
accepted, would do violence to that section hence this argument
is also rejected.
Nextly, it was argued by the learned counsel that under
section 161 IPC as it stood at the relevant point of time made it
an offence only if the bribe is received/obtained with a view to
render any service with the Government concerned. In the
instant case it is submitted that even according to the
prosecution, giving of the bribe was for the purpose of
receiving a document back from the custody of the Department
which cannot be treated as an act of the Government. This
argument also in our opinion is without any substance. The
document in question was produced before the income-tax
authorities for some official purpose and was in its custody.
When the ITO directed the return of the document, he was
doing an official duty on behalf of the Government. The order
that he passed for the return of the document was an official
order and any act which has to be done to fulfil or comply with
the said order will also be an official act hence when A-1 was
directed to return back the document, A-1 was not acting in a
private capacity, he was doing an official act hence if in that
process he demands bribe, it would be an offence under section
161 IPC as it stood then.
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Having considered the legal arguments we will now
consider the factual arguments. Learned counsel appearing for
A-2 argued that there is no material to show that A-2 was a
party to the conspiracy to demand and receive bribe and the
prosecution has failed to establish that the money collected by
A-2 was bribe money therefore A-2 cannot be held to be guilty
for merely receiving Rs.50 for and on behalf of A-1 in the
absence of any material to show that either he had a share in the
money or he had knowledge that he was collecting this money
on behalf of A-1. This argument also has no legs to stand. It is
seen from the evidence led by the prosecution that when the
ITO passed the order on 26.5.1980 and directed A-2 to take that
order to A-1, he took the same along with PW-3 and was
present when A-1 made the demand for Rs.50, therefore, A-2
had the knowledge as to the demand made by A-1. The
necessary inference therefore should be that A-2 who was also
present when the bribe money was demanded definitely knew
the money he was collecting was bribe money. This is more so
in the background of the fact that no explanation has been given
by A-2 in this regard in his statement under section 313 of the
Code. If A-2 was present when the bribe money was demanded,
he definitely knew that it was being asked for delivering the
document. That apart, the fact that he carried the document to
the Coffee House and refused to reduce the amount by saying
that A-1 would be suspicious of him, would clearly indicate the
fact that A-2 was receiving the money knowing it to be a bribe
for and on behalf of A-1, therefore, in our opinion, that part of
the conspiracy and acceptance of the bribe money knowingly
stands proved.
The learned counsel tried to take support from the
evidence of DW-2, the lawyer, who applied for the return of the
document. Having perused the same we do not find any
material in the evidence of this witness which would help the
appellant.
Mr. S C Maheshwari, learned senior counsel, in support
of his arguments relied on three judgments of this Court in
M.K. Harshan v. State of Kerala (1996 (11) SCC 720),
Sadashiv Mahadeo Yavaluje and Gajanan Shripatrao Salokhe v.
State of Maharashtra (1990 (1) SCC 299); and State of Madhya
Pradesh v. J.B. Singh [JT 2000 (7) SC 539]. We do not think
that the said judgments are based on any principle of law and
the same were decided on facts of those cases and the facts of
this case being not similar, we are of the opinion that the said
judgments are of no assistance to the appellants.
Then it is argued on behalf of the appellants that the
incident in question having taken place nearly 23 years ago, the
appellants have already suffered sufficiently and we should take
a lenient view of the matter and award a lesser sentence. We
notice that the two appellants who were Government servants
have since lost their jobs and all retiral benefits and the
prolonged litigation has caused considerable loss and suffering.
Bearing in mind the fact that both the appellants have crossed
60 years of age, we think it appropriate that the sentence of 1
year RI imposed by the High Court should be further reduced to
a period of 6 months. Therefore, for the reasons recorded
hereinabove, we alter the sentence awarded by the High Court
for offences punishable under section 120B IPC, 161, 5(1)(d)
read with 5(2) of the Act to 6 months’ RI. We do not think it is
necessary to award separate sentences under other provisions of
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the Act for which they have been sentenced by the trial court.
The sentence already undergone, if any, will be given set off.
The appellants are on bail. Their bail-bonds shall stand
cancelled. They shall surrender to their bail-bonds. The appeals
are partly allowed.