Diwakar Pandey vs State Of U.P. Thru. ...
2022 Latest Caselaw 21146 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 10
 

 
Case :- CRIMINAL APPEAL No. - 1370 of 2016
 

 
Appellant :- Diwakar Pandey
 
Respondent :- State Of U.P. Thru. Superintendnet Of Police Central Bureau
 
Counsel for Appellant :- Purnendu Chakravarty
 
Counsel for Respondent :- Bireshar Nath
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present criminal appeal under Section 374 (2) Cr.P.C. read with Section 27 of the Prevention of Corruption Act has been filed against the judgment and order of conviction and sentence dated 5.9.2016 passed by the learned Special Judge, CBI, Court No.4, Lucknow in Criminal Case No.1600028 of 2010, State through CBI Vs. Diwakar Pandey, arising out of RC No.0062010A0019, whereby the learned trial court has convicted the accused-appellant under Section 7 of Prevention of Corruption Act and sentenced him to one year rigorous imprisonment with a fine of Rs.5,000/- and in case of default of payment of fine, further to undergo one month additional rigorous imprisonment and under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced him to undergo three years rigorous imprisonment with a fine of Rs.20,000/- and, in case of default of payment of fine, further to undergo three months rigorous imprisonment. All the sentences were directed to be run concurrently except for the fine.

2. The facts of the case, in brief, are that the appellant was posted as Branch Manager, Allahabad U.P. Gramin Bank, Jharokala Branch, Sonbhadra. It is said that for sanctioning the Kisan Credit Card Limit loan of Rs.30,000/-, he demanded Rs.3,000/- from the complainant, Tribhuwan Yadav. The loan was in the name of his grandfather, Gulab Yadav. The complainant made a complaint regarding demand of bribe by the appellant to the Superintendent of Police, CBI, Lucknow. After verification of the complaint, an FIR was registered and, thereafter, a trap team was constituted. The trap team recovered Rs.3,000/- from the possession of the appellant. Appellant was dismissed from service after departmental proceedings.

3. The CBI after investigating the offence, filed charge sheet and the trial court framed the charge against the accused-appellant under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act.

4. The accused-appellant denied the charge and claimed for trial. The prosecution to prove its case examined as many as ten witnesses. Learned trial court after analyzing the evidence and law found the charge proved against the accused-appellant and convicted the accused-appellant for offences and sentenced him accordingly as mentioned above.

5. It is important to note that Gulab Yadav in whose name the Kisan Credit Card Limit loan was sanctioned, did not support the prosecution case and he was declared hostile and despite this, the appellant had been convicted.

6. Sri Purnendu Chakravarty, learned counsel for the accused-appellant submits that he does not want to argue the appeal on merit and the conviction may be upheld. However, looking at the age of the accused-appellant, who is 70 years of age, his medical condition as he is suffering from various ailments and he requires regular medial check up, weak, infirm and hardly in a position to walk and in view of the judgement of the Supreme Court in the case of V.K. Verma Vs. Central Bureau of Investigation, (2014) 3 SCC 485, this Court may reduce the sentence to the period already undergone by the accused-appellant and enhance the fine as this Court may deem fit and proper in the facts and circumstances of the case.

7. Sri Shiv P. Shukla, learned counsel for the CBI has no objection for dismissing the appeal so far the convection is concerned, but so far the reducing the sentence to less than the minimum period prescribed, he submits that the judgment of the Supreme Court in the case of V.K. Verma (supra) is not applicable in each case. However, he is not in a position to deny the fact that the accused-appellant is 70 years of age and he is suffering from various ailments.

8. I have considered the submissions advanced by the learned counsel for the parties and perused the lower court record.

9. Sections 7 and 13(2) of the Prevention of Corruption Act would read as under :-

?7. Public servant taking gratification other than legal remuneration in respect of an official act.?Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person 5 or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1 [three years] but which may extend to [seven years] and shall also be liable to fine.

13. Criminal misconduct by a public servant.?

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(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.?

10. The minimum sentence provided at the relevant time before amendment was one year.

11. The Supreme Court in the case of V.K. Verma (supra) has held that even the minimum sentence can be reduced by the appellate court after considering the facts, such as age, long pendency of the criminal case in the court, illness and infirmity of the accused-appellant etc. In paragraphs 8 to 13 of the aforesaid judgement, the Supreme Court held as under:-

"8. The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. As we have noted above, the FIR was registered by CBI in 1984. The matter came before the Sessions Court only in 1994. The Sessions Court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount.

9. In Ashok Kumar v. State (Delhi Admn.) [(1980) 2 SCC 282 : 1980 SCC (Cri) 426] , the commission of offence of theft was committed in 1971 and the judgment of this Court was delivered in 1980. The conviction was under Section 411 IPC. This Court having regard to the purpose of punishment and "the long protracted litigation", reduced the sentence to the period already undergone by the convict.

10. In Sharvan Kumarv.State of U.P.[(1985) 3 SCC 658 : 1985 SCC (Cri) 437] , the commission of offence was in 1968 and the judgment was delivered in 1985. The conviction was under Sections 467 and 471 IPC. In that case also, the long delay in the litigation process was one of the factors taken into consideration by this Court in reducing the sentence to the period already undergone.

11. In Ajab v. State of Maharashtra [1989 Supp (1) SCC 601 : 1989 SCC (Cri) 602] also, this Court had an occasion to examine the similar situation. The offence was committed in 1972 and this Court delivered the judgment in 1989. The conviction was under Section 224 read with Section 395 IPC. In that case also "passage of time was reckoned as a factor for reducing the sentence to the period already undergone". This Court in that case, while reducing the substantive sentence, increased the fine holding that the same would meet the ends of justice.

12. The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardiovascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, would it not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction.

13. Accordingly, the appeal is partly allowed. The substantive sentence of imprisonment is reduced to the period already undergone. However, an amount of Rs 50,000 is imposed as fine. The appellant shall deposit the fine within three months and, if not, he shall undergo imprisonment for a period of six months. On payment of fine, his bail bond will stand cancelled."

12. In view of the aforesaid submissions advanced on behalf the learned counsel for the parties and also taking note of the judgement of the Supreme Court in the case of V.K. Verma (supra), so far the appeal in respect of conviction under Sections 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 is concerned, the appeal is dismissed. However, in respect of sentence, considering the mental and physical disability of the accused-appellant and his advanced stage i.e. he being 70 years of age, it would be appropriate to reduce the sentence to the period of sentence already undergone by the accused-appellant, which is two and a half months. However, the fine imposed by the learned trial court is increased to fine of Rs.50,000/- (Rupees Fifty Thousand) to be deposited by the accused-appellant in the account of Army Battle Casualty Welfare Fund, Headquarter, New Delhi within a period of four weeks from today. In case the accused-appellant deposits the fine as directed above, the bail bonds shall stand cancelled and the sureties shall stand discharged. In the event, the accused-appellant does not deposit the fine of Rs.50,000/- within the period prescribed, he shall undergo the sentence as awarded by the trial court.

13. Subject to above noted terms, the appeal is partly allowed.

14. Let lower court record be sent back to the concerned trial court forthwith.

Order Date :- 15.12.2022

Rao/-