B. G. Goswami Vs. Delhi Administration
 INSC 118 (4 May 1973)
MATHEW, KUTTYIL KURIEN
CITATION: 1973 AIR 1457 1974 SCR (1) 222 1973
SCC (3) 85
F 1974 SC 852 (10) F 1992 SC1922 (4)
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.
(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 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]
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.
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
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 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
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 underone 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 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 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 (1) A.I.R. 1971 SC 1420.
227 question 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 considerations, 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
Rs200/to Rs. 400/-.
Period of imprisonment in case of default
will remain the same.
This appeal is accepted in part in the terms
V. P. Appeal allowed in part.