Madhukar
Bhaskarrao Joshi Vs. State of Maharashtra [2000] INSC 546 (9 November 2000)
K.T.
Thomas, & R.P. Sethi. THOMAS, J.
Leave
granted.
L.I.T.J
Once the prosecution established that gratification in any form cash or kind
had been paid or accepted by a public servant the court is under a legal
compulsion to presume that the said gratification was paid or accepted as a
motive or reward to do (or forbear from doing) any official act. The only
exception to the said rule is, when the gratification is so trivial that no
inference of corruption could in fairness be drawn on a particular fact
situation the court has no such legal compulsion to presume.
Such a
presumption was introduced in the Prevention of Corruption Act, 1947 (Act of
1947, or short) through a later amendment. The said legal presumption was
carried forward into the successor enactment of 1988. In the present case, a
public servant admitted that a certain amount was paid to him by a private party,
but he sought to explain that it was an amount otherwise payable to him and
hence it was no gratification at all. The trial court and the High Court found
that the public servant failed to prove that the amount received by him was
legally due to him otherwise.
The
trial court convicted him under Section 5(2) of the Act of 1947, and sentenced
him to rigorous imprisonment for one year and a fine of Rs.5000/-. Though he
was convicted under Section 161 of the Indian Penal Code also the court did not
award any separate sentence on that account. When he appealed to the High
Court, a single judge concurred with the finding and confirmed the conviction.
However, learned single judge reduced the imprisonment limb of the sentence to
just one day, but enhanced the fine limb to Rs.3000/-.
The
public servant was not satisfied with the substantial amelioration he secured
from the High Court. Perhaps he thought that the conviction itself would
magnetize hazards in his service career. Hence he filed this appeal by special leave.
But when the special leave petition was considered we felt, prima facie, that
the learned single judge reduced the sentence of imprisonment to the vanishing
point without the authority of law after confirming the conviction. We
therefore, issued notice to the appellant to show cause why the sentence passed
by the trial court shall not be restored if the conviction remains undisturbed.
The appellant public servant, optimistic as he was, has chosen to pursue the
SLP to its logical end even at the risk of losing the benefit he secured from
the High Court.
Appellant
was a Sub Engineer in the Maharashtra State Electricity Board (Electricity
Board, for short). During the relevant time he was posted at Wadia Sub Station,
Pune.
The
incident which dragged him into the vortex of this criminal litigation had
happened during his tenure at Wadia.
It all
happened in the following manner: PW-1 (Prem Gangaram Adwani) was a businessmen
and also a social activist. He was engaged in carrying out contract work for
electrical decorations and illumination at different places.
The
name of his business was Modern Decorators. According to the prosecution case,
PW-1 secured a contract work to do illumination and electric decoration during
a particular period in November 1979, in connection with the birth centenary of
a spiritual person who was adored in the locality. As additional load of
electric power was required for the aforesaid illumination he filed an
application to the Electricity Board for sanction of such additional load.
The
Manager of the company (Kishan Jadhav) was deputed to approach the appellant in
connection with the said sanction.
But Jadhav
reported to PW-1 that appellant was demanding a sum of Rs.550/- as reward for
granting sanction for the additional load. PW-1 assured that the sum would be
paid and on that assurance appellant sanctioned the additional load of power.
But the amount expected by the appellant was not paid till December 1979.
Hence, he phoned up PW-1 and reminded him of his word. It appears there was a
little bargaining and appellant reduced the amount to Rs.300 and agreed to
collect that amount from the office of PW-1. In the meanwhile PW-1 lodged a
complaint with the Anti Corruption Bureau. They arranged a trap to catch the
appellant red-handed. After the scheme for the trap was finalised appellant was
informed of the readiness of PW-1 to pay the amount desired by him. On
25.2.1980, around 8.00
P.M. appellant went to
the office of PW-1. On seeing him PW-1 switched on a concealed tape-recorder.
There was some dialogue between them which got recorded on the tape- recorder.
However, when other customers visited the same office appellant indicated to
PW-1 through a gesticulation about his readiness to accept the promised money
then and there. It was then that PW-1 handed over the pre-arranged currency
notes to the appellant. PW-1 transmitted the message through a signal to the
members of the Anti Corruption Squad who were waiting outside. Those persons
then rushed to the room and caught the appellant red-handed with the tainted
currency notes. Later the case was charge-sheeted against him. After recording
the evidence relating to the said trap the Special Judge examined the appellant
under Section 313 of the Code of Criminal Procedure. Appellant filed a written
statement in which he said, inter alia, that he went to the office of PW-1 on
the said night as he was requested to reach there for a discussion about
certain programmes of the Sindhi Association in which, perhaps, both were
interested. While they were talking on that subject some persons reached there.
Then the appellant stood up and was about to leave the place, but then PW-1
paid him some money saying that it was a gift. Appellant told him that he would
not accept any such gift. However, appellant wanted to ask his manager as to
why PW-1 was giving such gifts to him. But before he could actually hand over
the money back to PW-1 he was caught by the office bearers of the Anti
Corruption Bureau.
The
above is, in substance, the statement made by the appellant in court through
the written submission. In the light of the said stand of the appellant we do
not find the necessity to consider the evidence of the prosecution witnesses
who all said that PW-1 gave the money to the appellant at his office. Of course,
learned counsel for the appellant contended that the testimony of PW-1, on that
score, is not corroborated by any other independent witness.
At
this stage itself we may point out that there is no merit in the said
contention, as there is sufficient corroboration on that aspect, even apart
from the testimony of other witnesses examined by the prosecution. The very
undisputed fact that the amount had reached the hands of the appellant itself
is sufficient corroboration for the testimony of PW-1 that the amount was paid
to the appellant. Learned counsel next contended that the legal presumption
envisaged in Section 4 of the Act of 1947 can be drawn only on establishing
that gratification was paid to or accepted by the public servant and not merely
that he was found in possession of the currency notes smeared with
phenolphthalein. True the word gratification is not defined in the Act of 1947.
(In the successor enactment, the Act of 1988, the same word is explained as not
restricted to pecuniary gratification or to gratification estimable in money
vide Explanation (b) to Section 7 of the Act of 1988). In Blacks Law
Dictionary, gratification is defined as a recompense or reward for services or
benefits given voluntarily without solicitation or promise. But in Oxford
Advanced Learners Dictionary of Current English the said word is given the
meaning to give pleasure or satisfaction to. Among the above two descriptions
for the word gratification with slightly differing nuances as between the two,
what is more appropriate for the context has to be found out. The context in
which the word is used in Section 4(1) of the Act of 1947 is, hence, important.
As the wording on the relevant portion employed in the corresponding provision
in the PC Act of 1988 {Section 20(1)} is identical we would reproduce that
sub-section herein: Where, in any trial of an offence punishable under section
7 or section 11 or clause (a) or clause (b) of sub- section (1) of section 13
it is proved that an accused person has accepted or obtained or has agreed to
accept or attempted to obtain for himself, or for any other person, any
gratification (other than legal remuneration) or any valuable thing from any
person, it shall be presumed, unless the contrary is proved, that he accepted
or obtained or agreed to accept or attempted to obtain that gratification or
that valuable thing, as the case may be, as a motive or reward such as is
mentioned in section 7 or, as the case may be, without consideration or for a
consideration which he knows to be inadequate.
The
premise to be established on the facts for drawing the presumption is that
there was payment or acceptance of gratification. Once the said premise is
established the inference to be drawn is that the said gratification was
accepted as motive or reward for doing or forbearing to do any official act. So
the word gratification need not be stretched to mean reward because reward is
the outcome of the presumption which the court has to draw on the factual
premise that there was payment of gratification. This will again be fortified
by looking at the collocation of two expressions adjacent to each other like
gratification or any valuable thing. If acceptance of any valuable thing can
help to draw the presumption that it was accepted as motive or reward for doing
or forbearing to do an official act, the word gratification must be treated in
the context to mean any payment for giving satisfaction to the public servant
who received it.
In Mohmoodkhan
Mahboobkhan Pathan vs. State of Maharashtra {1997(10) SCC 600} this Court has taken the same meaning
for the word gratification appearing in Section 4(1) of the PC Act of 1947. We
quote the following observations:
The
primary condition for acting on the legal presumption under Section 4(1)of the
Act is that the prosecution should have proved that what the accused received
was gratification. The word gratification is not defined in the Act. Hence it
must be understood in its literal meaning. In the Oxford Advanced Learners
Dictionary of Current English, the word gratification is shown to have the
meaning to give pleasure or satisfaction to. The word gratification is used in
Section 4(1) to denote acceptance of something to the pleasure or satisfaction
of the recipient.
We,
therefore, repel the contention of the learned counsel that prosecution has a
further duty to prove beyond the fact that PW-1 had paid the demanded money to
the appellant for enabling it to lay the hand on the legal presumption employed
in the Prevention of Corruption Act.
We may
point out that the defence did not even attempt to prove that the amount
received by the appellant was not accepted as a reward or motive for the
official act done by him, except the ipse dixit of the appellant, that too made
at the fag end of the trial when he put in a written statement of his defence.
Hence no exception can be taken to the conviction passed by the trial court
which was concurred by the High Court in respect of the offence under Section
5(2) of the Act of 1947.
Dealing
with the sentence aspect learned single judge of the High Court has counted two
aspects. One is that the counsel pointed out that the appellant was under
suspension for 7 years and the High Court had suspended both the conviction and
sentence during the pendency of the appeal in the High Court and that he was
reinstated and continued as such till the date of the impugned judgment and in
the meanwhile he was promoted to the post of Junior Engineer.
Second
is that another single judge of the Bombay High Court (Saldhana, J.) had
reduced a sentence of imprisonment from two years to just one day, and
increased the fine sentence from Rs.1,000/- to Rs.35,000/- for a similar
offence in another case. That decision has been reported as Vasant Maruti Waikar
vs. State of Maharashtra (1991 Maharashtra Law Journal
1318). The said decision was relied on as a precedent.
Learned
counsel for the appellant submitted before us that the court has powers to
impose any sentence below the minimum prescribed. He cited two decisions of
this Court [Balaram Swain vs. State of Orissa, (AIR 1991 SC 279, M.O.
Shamsuddin
vs. State of Kerala (1995 3 SCC 351)]. In both the said
decisions this Court had reduced the sentence to the period of imprisonment
already undergone by the public servants in consideration of the long duration
of the pendency of criminal proceedings against the convicted persons. We
perused these decisions and it is difficult to find out therefrom as to the
precise period of imprisonment awarded by this Court since there is no
indication as to the period during which the convicted persons were in jail in
those cases. It is necessary to remind ourselves of the scope of the power of
the court for reducing the sentence from the minimum fixed in the statute. We,
therefore, extract Section 5(2) of the Act of 1947.
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 to 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.
It
must be noted that in the corresponding provision of the Act of 1988 [Section
13(2) of that Act] there is no such proviso as in Section 5(2) of the earlier
Act and no power whatsoever is given to the court to impose a sentence less
than the minimum, even if there are special reasons for doing so. The
Parliament fixed the minimum sentence of imprisonment of one year even under
the Act of 1947 by making an amendment to it in 1958 for which the legislative
language is apparently peremptory i.e. shall not be less than one year. The
proviso is in the form of a rare exception by giving power to the court for
reducing the imprisonment period below one year only when there are special
reasons and the law required that those special reasons must be recorded in
writing by the court.
When
corruption was sought to be eliminated from the polity all possible stringent
measures are to be adopted within the bounds of law. One such measure is to
provide condign punishment. Parliament measured the parameters for such condign
punishment and in that process wanted to fix a minimum sentence of imprisonment
for giving deterrent impact on other public servants who are prone to corrupt
deals.
That was
precisely the reason why the sentence was fixed as 7 years and directed that
even if the said period of imprisonment need not be given the sentence shall
not be less than the imprisonment for one year. Such a legislative insistence
is reflection of Parliaments resolve to meet corruption cases with very strong
hand and to give signals of deterrence as the most pivotal feature of
sentencing of corrupt public servants. All public servants were warned through
such a legislative measure that corrupt public servants have to face very
serious consequences. If on the other hand any public servant is given the
impression that if he succeeds in protracting the proceedings that would help
him to have the advantage of getting a very light sentence even if the case ends
in conviction, we are afraid its fallout would afford incentive to public
servants who are susceptible to corruption to indulge in such nefarious
practices with immunity. Increasing the fine after reducing the imprisonment to
a nominal period can also defeat the purpose as the corrupt public servant
could easily raise the fine amount through the same means.
In the
present case, how could the mere fact that this case was pending for such a
long time be considered as a special reason? That is a general feature in
almost all convictions under the PC Act and it is not a speciality of this
particular case. It is the defect of the system that longevity of the cases
tried under the PC Act is too lengthy. If that is to be regarded as sufficient
for reducing the minimum sentence mandated by the Parliament the legislative
exercise would stand defeated. The High Court unfortunately did not look at the
sentencing aspect with the seriousness which the Parliament wanted the court to
exercise in such situations. In our view, there was absolutely no special
reason in this case as for the appellant to entitle to get a sentence less than
the minimum prescribed by law. Accordingly, we restore the sentence passed by
the trial court on the appellant for the offence under Section 5(2) of the Act
of 1947.
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