2016 ALL SCR (Cri) 201
H. L. DATTU AND V. GOPALA GOWDA, JJ.
Shantaram Somwanshi Vs. State of Madhya Pradesh
Criminal Appeal No.694 of 2007
2nd September, 2015.
Petitioner Counsel: Mr. RISHI MALHOTRA, Mr. PREM MALHOTRA
Respondent Counsel: Mr. T.A. KHAN, Mr. B.V. BALRAM DAS, Mr. P. PARMESWARAN
(A) Prevention of Corruption Act (1947), S.5 - Illegal gratification - Appeal against conviction - Prosecution case that appellant demanded and accepted illegal gratification from complainant casual sweepers working under his supervision in exchange for continuing their employment - Prosecution established its case beyond reasonable doubt - Conviction of appellant, proper - No interference. (Para 12)
(B) Prevention of Corruption Act (1947), S.5 - Illegal gratification - Sentence - Appellant found guilty of offence punishable under S.5(1)(d) r.w. S.5(2) of PC Act, 1947 - Fact that appellant is suffering from various serious ailments and alleged incident occurred almost 35 years ago - In view of such fact, sentence imposed on appellant reduced to sentence undergone under proviso appended to S.5(2) of the Act. (Paras 15, 16)
JUDGMENT :- This appeal is directed against judgment and order passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.499 of 1990, dated 26.09.2005. By the impugned judgment and order, the High Court had partly upheld the judgment and order passed by the Trial Court in Special Case No.4 of 1981 dated 07.05.1990
2. The prosecution's case is that the appellant had been employed as a Station Health Inspector in Central Railways, Jabalpur since the year 27.08.1979. While so employed, the appellant habitually demanded a bribe of Rupee One per day from the casual sweepers working under his supervision in exchange for continuing their employment as casual sweepers. On 12.06.1980, the complainant (PW-21), who had previously worked under the appellant as a casual sweeper, approached the appellant and requested him to continue his employment as a casual sweeper. However, the appellant demanded a sum of Rs.25/- as bribe from the complainant for doing the same.
3. On 13.06.1980, the complainant filed a written complaint against him before the Superintendent of Police, CBI, Jabalpur who forwarded the same to PW-19, the Investigating Officer. PW-19 then registered an FIR and completed pre-trap proceedings including smearing the trap money with phenolphthalein powder. Immediately thereafter, the trap party reached the railway station where the appellant's office was situated. The complainant then approached the appellant who asked him to hand over the bribe amount to one Maniklal, his deputy, who was present at the time. The appellant and Maniklal then left. However, Maniklal returned after a short period of time and the complainant handed over the bribe amount to him. On the complainant's signal, the trap team entered the premises and questioned Maniklal who admitted to having received the bribe amount on the appellant's instructions. The bribe amount was seized and the sodium carbonate test was conducted which gave a positive result. At the same time, the appellant also arrived on the scene and was arrested. Subsequently, the investigation was completed and on sanction for prosecution being received, a charge sheet was filed before the Trial Court.
4. Thereafter, on the appellant and Maniklal appearing before the Trial Court, charges were framed against them for offences under Section 5(1) (a) read with Section 5(2) and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for short, "the Act") and Sections 161 and 120B of the Indian Penal Code (for short, "the IPC"). The charges were read over and explained to the two accused (the appellant and Maniklal) who pleaded not guilty. Consequently, the case was committed to trial.
5. The prosecution examined 21 witnesses. The accused's statement was recorded under Section 313(1)(b) of the Code of Criminal Procedure (for short, "the Code") wherein they stated that he had been falsely implicated. The defense further examined one witness.
6. The Trial Court considered the evidence on record as also the arguments of the parties and observed that the evidence on record was sufficient to prove that Maniklal had received the bribe amount on the appellant's direction and that the two accused had entered into a conspiracy to that end. The Trial Court further noticed that the testimonies of the prosecution witnesses were cogent and reliable and the prosecution had been able to prove its case beyond reasonable doubt. Therefore, the Trial Court concluded that the accused persons were guilty of the offences charged against them and, vide order dated 07.05.1990 convicted the accused. The appellant was sentenced to rigorous imprisonment for a period of one year and a fine of Rs.50/- for each count, with directions that the sentences would run concurrently.
7. Aggrieved by the said conviction and sentence, the appellant approached the High Court in Criminal Appeal No.499 of 1990 on the grounds, inter alia, that the prosecution's case was false and mala fide; that the testimonies of the prosecution witnesses were contradictory and unreliable; and, that the order of sanction for prosecution was invalid.
8. By the impugned judgment and order dated 26.09.2005, the High Court re-appreciated the entire evidence on record and observed that the prosecution had failed to sufficiently prove its case against the accused in relation to the charges under Section 5(1)(d) read with Section 5(2) of the Act and Sections 161 and 120B of the IPC. The mere factum of acceptance of money by Maniklal did not, in and of itself, prove that Maniklal had demanded or accepted illegal gratification on behalf of the appellant. However, as regards the charge under Section 5(1)(d) read with Section 5(2) of the Act, the High Court observed that the testimonies of the prosecution witnesses was cogent and reliable and clearly established the fact that the appellant was routinely demanding and accepting money from the casual sweepers working under his supervision as illegal gratification in exchange for continuing their employment as casual sweepers. The High Court further rejected the appellant's contention that the order of sanction for prosecution was invalid. Therefore, by the impugned judgment and order, the High Court, while acquitting the appellant of all other offences, upheld the order passed by the Trial Court with regard to the conviction and sentence under Section 5(1)(a) read with Section 5(2) of the Act.
9. Aggrieved by the judgment and order passed by the High Court, the appellant is before us in this appeal.
10. We have heard learned counsel for parties to the lis.
11. Shri Rishi Malhotra, learned counsel for the appellant, would submit that the prosecution had been unable to establish its case beyond reasonable doubt and that the appellant's conviction was illegal and unwarranted.
12. After going through the judgment and order passed by the High Court as well as the Trial Court and having considered the submissions made before us, the appellant's case fails to convince us. The High Court has rightly concluded that the prosecution was able to prove that that the appellant was demanding and accepting illegal gratification from the casual sweepers working under his supervision in exchange for continuing their employment. The impugned judgment and order does not suffer from any infirmity in this regard and does not require our interference.
13. On the question of sentence, learned counsel for the appellant submits that, given the appellant's advanced age, the fact that the appellant is suffering from various serious ailments and the fact that the alleged incident occurred almost 35 years ago, the sentenced imposed ought to be reduced. The learned counsel has also produced before us certain documents in support of these contentions. Learned counsel for the respondent has not seriously disputed these contentions made by learned counsel for the appellant.
14. The minimum sentence prescribed in Section 5(2) of the Act for an offence under Section 5(1) (a) is imprisonment for a period not less than one year. However, the proviso appended to Section 5(2) permits the court to impose a sentence for a period less than one year provided special reasons for doing so are recorded in writing.
15. Taking into consideration the advanced age of the appellant, the fact that he is suffering from various serious ailments, the fact that nearly 35 years have passed since the date of the incident and the fact that the appellant has already undergone imprisonment for a period of two months, it is our considered opinion that the sentence imposed on the appellant ought to be reduced to the sentence undergone under the proviso appended to Section 5(2) of the Act.
16. In light of the aforesaid, the appeal is partly allowed. The judgment of conviction passed by the High Court is confirmed while the order of sentence is modified and the sentence imposed is reduced to the period of sentence already undergone. The appeal is disposed of accordingly.
17. If the appellant has furnished any bail bonds, the same are discharged.
18. It is needless to say that the order passed by us shall not be treated as precedent in any other case.