B. G. GOSWAMI vs. DELHI ADMINISTRATION

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6 PETITIONER: B. G. GOSWAMI Vs. RESPONDENT: DELHI ADMINISTRATION DATE OF JUDGMENT04/05/1973 BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN CITATION: 1973 AIR 1457 1974 SCR (1) 222 1973 SCC (3) 85 CITATOR INFO : F 1974 SC 852 (10) F 1992 SC1922 (4) ACT: Prevention of Corruption Act (2 of 1947), Ss. 4(1), 5(1) and (2)-Statutory presumption, if applicable. Practice-Sentence-Principles for imposing sentence of imprisonment. HEADNOTE: (a) With 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 Act, against the accused, is not available. R. C. Mehta v. State of Punjab, A.I.R. 1971 S.C. 1420, referred to. (b) Under s. 5(1)(d) read with s. 5(2), the minimum sentence prescribed is one year RI and a sentence for a 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 offences, and the sentences of imprisonment were directed to run concurrently. The High Court in appeal, reduced the sentence to I year R.I. and maintained the line. The High Court and the trial Court relied on the statutory presumption. In appeal to this Court, HELD : (1) The offence was committed 7 years ago and criminal proceedings lasting for such a long time would by itself mean considerable harassment 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 statutory presumption. [226E-F] (2) This Court also does not examine the evidence for itself in appeals under Art. 136 except when interests of justice so demand. In the instant 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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6 Corruption Act is admittedly applicable. There is thus no question of grave failure of justice or of a guilty person escaping justice, if this Court does not examine the evidence for determining the guilt of the appellant under Ss. 5(1) (d) and 5 (2) of the Act. [226B-C, F-G] (3) The question of sentence is always a difficult question requiring a proper adjustment of the reformatory, deterrent and punitive aspects of punishment. In the instant case, considering the facts that the appellant is going to lose his job and has to earn a living for himself and members of his family. the ends of justice would be met by imposing a fine instead of sending him back to jail (the appellant was on bail) after 7 years of agony and harassment of criminal proceedings. [227A-B, D-E] JUDGMENT: 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 223 DUA, J.-The appellant in this appeal by special leave challenges the judgment and order of a 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 (1) (d) of the Prevention of Corruption Act, 1947 and under sec. 161, I.P.C. The Special Judge convicting the appellant by his order dated May 24, 1967, bad imposed a sentence of rigorous imprisonment for 1-1/4 years and also imposed a 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; a similar substantive 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 imprisonment under both counts to rigorous imprisonment for one year each. The sentence of fine and imprisonment in default of payment of fine was maintained. Shri R. L. Kohli, the learned counsel for the appellant has addressed elaborate arguments in support of this appeal and has severely criticised the judgments and orders of both the courts below. Before considering 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-keeper 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 vegetables 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. The D.S.P. thereupon organised a raiding party consisting of Shri Kewal Ram (P.W. 1) and Shri Ram Rikh (P.W. 5), two officials of the Sales-Tax Department and some policemen. http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6 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 the 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 thereafter. 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 and convicted the appellant as already noticed. In the High Court, the learned single Judge also felt that the prosecution 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 bear the conversation between the complainant and the appellant were not able to hear distinctly such conversation as the radio in the Restaurant was 224 being played at a 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 complainant 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 him 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(1) 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 evidence 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 a trick, then this statutory presumption could not be invoked for establishing the appellant’s guilt. After noticing this principle 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 Judge did not believe this version for the reason that Kewal Ram (P.W. 1) and Ram Rikh (P.W. 5) had not referred to any such refusal by the appellant and it was not put to them in cross-examination that any bills had been passed on to the appellant along with the currency notes. These witnesses having clearly stated that what was passed on by the complainant 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 appellant had initially declined to accept the bribe, the complainant’s later statement that he actually passed on the currency notes to the appellant who accepted them with full knowledge, although the bills also accompanied the currency http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6 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 overcome when the complainant placed the currency 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 accordingly 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(1) of the Prevention of Corruption Act was in the circumstances considered to be applicable to the case with 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 wholly 22 5 unsustainable both on facts and in law. According to him, Madan Singh complainant, P.W. 3 had a grudge against the appellant because the supplies of defective vegetables made by him had not been condoned. The appellant had declined to receive the bills for the supply of vegetables which Madan Singh wanted to hand-over to the appellant personally. Madan Singh, it appears, played a 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 of the currency notes within the folds of those bills. It was, therefore, not possible to come to a finding that the appellant had accepted the currency 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, expressly excludes cases covered under s. 5 ( 1 ) (d) of that Act. The, appellant’s conviction under that clause of s. 5(1) would, therefore, have to be examined by ignoring the presumption. Once that presumption is excluded, the evidence on the point falls far short of the required standard for sustaining conviction in a criminal court, This, the learned counsel says, would only leave the offence under. s. 161, I.P.C. But with respect to the offence under this section, if the presumption is forthcoming 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 learned counsel made a plea of, what he called, mercy, by submitting that the offence was committed as far back as January 1966 and he has under- one the harassment of the trial and of the appellate proceedings during all these years and has been on bail since 1970. This, according to the submission, should be considered a sufficient punishment, particularly when the appellant must also lose his job. In our opinion, the evidence in the case which has been properly appraised by the Special Judge and by a 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 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6 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 regard 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 evidence correctly and their conclusion is not open to further re-examination by 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 226 sec. 5 (1)(d) of the Prevention of Corruption Act that the statutory ,presumption is not available with respect to it. No doubt, this point 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 a question of pure law which goes to the root of the matter relating to the appellant’s conviction under sec. 5(1)(d) and sec. 5(2) of the Prevention of Corruption Act, this Court would be fully justified in taking notice of this argument. The appellant has, however, also been convicted under sec. 161, I.P.C., an offence to which the presumption embodied in s. 4(1) of the Prevention of Corruption Act is admittedly applicable. According to the respondent, even without pressing into service the said presumption the offence under s. 5(2) and s. 5(1)(d) is fully established by cogent evidence on the present record. In view of 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 in 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 a fresh decision whether or not the offence under s. 5(1)(d) read with s. 5(2) of the Prevention of Corruption Act is proved beyond doubt on the evidence after ignoring the statutory 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 considerable harassment for an accused person. It causes not only mental worry but, it also mean,-, expense apart from attendance in Court and a feeling of agonising suspense caused by the prolonged uncertainty of the result obstructing the continuity of his normal life. ’Ale also cannot ignore the fact bat 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 remanding the case to 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, I.P.C. and under s. 5(1)(d) read with s. 5(2 )of the Prevention of Corruption Act. Therefore, there is no question of grave failure of justice or of a guilty party http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6 escaping justice, if we do not examine the evidence 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, I.P.C. was rightly upheld by the High Court and there is no cogent ground made out for our interference with that conviction. The sentence of imprisonment imposed by the High Court for both these offences 1 year and this sentence is to run concurrently. The only ques- (1) A.I.R. 1971 SC 1420. 227 tion which arises is that under s. 5(1)(d) read with s.5(2) of the Prevention of Corruption Act the minimum sentence prescribed is rigorous imprisonment for one year and there must also be imposition of fine. The sentence of imprisonment can be for a lesser period but in that event the Court has to assign special reasons which must be recorded in writing. In considering the special reasons the judicial discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various consi- derations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act. which 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 a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a 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 already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same. This appeal is accepted in part in the terms just stated. V. P. Appeal allowed in part. 2 2 8