Chattisgarh High Court
O.P.Singhal vs State Of Chhattisgarh on 23 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 3057 of 1999
Judgments Reserved on 23.11.2022
Judgment Delivered on 23.01.2023
B.R. Armo S/o. Sadhuram Armo, Aged about 42 years, Gramin Bank
Bilaspur, Raipur Chhetriya Gramin Bank, Resident of village Kari,
Navapara, Post and P.S. Pali, Tahsil- Pali, District Bilaspur (MP) now
Chhattisgarh ---------Appellant
VERSUS
State of Madhya Pradesh/ Now State of Chhattisgarh, through the Central
Bureau of Investigation Raipur, District Raipur (CG)
--------Respondent
CRA No. 3175 of 1999
O.P. Singhal S/o. Murarilal Singhal, aged about 44 years, Ex-Branch
Manager, Bilaspur Raipur Chhetriya Gramin Bank, District Bilaspur, R/o.
Agrawal Agro Center Jute Mill Road, Raigarh, District Raigarh (MP) now
Chhattisgarh --------Appellant
VERSUS
State of Chhattisgarh through the Central Bureau of Investigation, Raipur,
District Raipur (Chhattisgarh)
----------Respondent
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For the Appellants : Mr. Vijay K. Deshmukh, Advocate for the
Appellant in CRA No. 3057/ 1999
Mr. B.P. Sharma with Hari Agrawal,
Advocates in CRA No. 3175/1999
For the Respondent/CBI : Mr. Vaibhav A. Goverdhan, Advocate
---------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Narendra Kumar Vyas
CAV Judgment
1. Since the two criminal appeals are arising out of the same judgment of
conviction & order of sentence dated 12.11.1999 passed by the Special
Judge & Additional Sessions Judge, CBI Jabalpur, in Sessions Trial No. 38
of 1985, they are being disposed of by this common judgment.
2. By the impugned judgment, the accused/appellants B.R. Armo and O.P.
Singhal have been convicted under Sections 120-B IPC, and Section 5(1)
(C) r/w section 5(2) of Prevention of Corruption Act, 1947. The sentence
awarded to them is as under:-
Conviction Sentence
U/s. 120-B IPC RI for 2 years with fine of Rs.
5,000/-with default stipulation.
5(1)(C) read with section 5(2) RI for 2 years with fine of Rs.
of Prevention of Corruption Act, 5,000/-with default stipulation.
1947 With a direction all the
sentences to run concurrently.
3. Case of the prosecution, in brief, is that appellant O.P. Singhal was posted
as Branch Manager in Bilaspur Raipur Regional Gramin Bank, Rahoud,
District Bilaspur and appellant B.R. Armno was posted as clerk-cum-
cashier in the same bank. It is alleged that appellant O.P. Sighal on
24.05.1982 has prepared debit voucher of Rs. 45, 596/- for withdrawal of
amount from subsidy account whereas the credit voucher equal amount of
debit voucher is being prepared, out of which only 34,583/- has been
credited to various account and Rs. 11, 053/- has not been deposited in
these accounts. Thus, Appellant B.R. Armo by committing criminal
conspiracy has deposited only Rs. 3,992/- in the receipt and payment
register whereas he has received Rs. 15,045/- and he has misappropriate
Rs. 11, 053/-. On the complaint being made, FIR (Ex.P-25) was registered
against the appellants on 01.01.1985 under Crime No. RC 02/85 for the
offence punishable under Sections 120-B IPC read with Section 5(1)(C),
5(2) of Prevention of Corruption Act.
4. During investigation, the prosecution has seized documents. After
completion of the investigation and all the formalities for filing charge
sheet, the charge sheet was filed against the appellants for the offence
under Section 120-B IPC read with section 5(1)(C), 5(2) of Prevention of
Corruption Act. The appellants denied the charges and prayed for trial.
5. To bring home the guilt of the Appellants the prosecution has examined as
many as 6 witnesses namely N.K. Jain (PW-1), Assistant General
Manager H.S.L. Badvaike (PW-2), Branch Manager Nand Kumar Sharma
(PW-3), DSP CBI Dineshchandra Dwivedi (PW-4), Dilip Kumar Soni (PW-
5), Government Examiner Harvansh Singh Tuteja (PW-6). The appellants
in their support has examined Hiralal (DW-1).
6. The prosecution in order to prove its case, during trial has exhibited
documents namely seizure memo dated 12.0485(Ex.P-1) appointment
order of B.R. Armo (Ex.P-2), appointment order of OP Singhal (Ex.P-3),
leave applications of OP Singhal (Ex.P-4 to Ex.P-13), leave application of
B.R.Armo (Ex.P-14 to Ex. Ex.P-15), transfer application of B.R. Armo
(Ex.P-16 to Ex.P-21), Sanction order under Section 6(1) C of PC Act 1947
(ExP-22 to Ex.P-23). Subsidy account sheet (Ex.P-24), credit voucher
(Ex.P-25), FIR (Ex.P-26), Specimen signature/ hand writing of appellant
O.P. Singhal (Ex.P-27 to Ex.P-51), Specimen signature/ hand writing of
B.R. Armo (Ex.P-52 to Ex.P-66), seizure memo (Ex.P-67), opinion of hand-
writing expert (Ex.P-68), Register Article-A, transfer credit voucher (Ex.P-
69-1, 69-43, credit voucher (Ex.P-70-1 to Ex.P-70-31).
7. Learned trial Court after considering the evidence and material on record
has convicted the appellants under Sections 120-B IPC and Section 5(1)
(C) and 5(2) of the PC Act, 1947 which is being challenged in this appeal.
8. Learned counsel for the appellants would submit that the prosecution has
failed to prove on record that appellant OP Singhal played any active role
in the alleged crime and the entire case is based on speculation. He would
further submit that prosecution has failed to seize any incriminating
material so as to constitute the offence against him. He would further
submit that appellant OP Singhal has not received any benefit and no
money allegedly embezzled has been received by him. He would further
submit that there is no evidence of conspiracy and/or prior meeting of mind
the accused person has been brought on record by the prosecution. He
would further submit that as per proviso to Section 5(3)(ii) of PC Act, 1947
any Court may, for any special reasons recorded in writing, impose a
sentence of imprisonment of less than one year. He would further submit
that in case the Hon'ble Court finds that the appellants have committed the
offence, therefore, as per Section 5(3)(II) of PC Act, 1947, the sentence
may be reduced considering (i) old age and health of the appellants (ii)
economically wasteful and a liability to State to keep appellant in prison.
(iii) Time lapsed from the date of occurrence. (iv) Involvement in any other
criminal case. (v) Long Duration of trial/prosecution. (vi) Duration of
pendecy of appeal before the Hon'ble High Court.(vii) Non commission of
any other offence and non-violation of bail condition. (viii) Suffering
immense trauma, mental and anguish. Lastly he would submit that
considering the same of the above mentioned mitigating factors/facts of
the case therein while enhancing the fine amount to Rs. 10,000/- modified
the sentence. In support of his argument, he would rely on the judgment of
Hon'ble Supreme Court in the cases of Munilal Mochi vs. State of Bihar
2012(12) SCC 546, V.K. Verma v. Central Bureau of Investigation 9014(3)
SCC 485 and Ambi Ram v. State of Uttarakhand 2019(17) SCC 396. He
would further submit that the finding recorded by trial Court that sanction to
prosecute has wrongly been given for invoking the provision of PC Act, as
the appellants are working in the Rural Bank which is not nationalized
bank, therefore, prosecution of the appellants under the PC Act, 1947 is
illegal and would pray for allowing the appeal and set aside the conviction.
9. Learned counsel for appellant B.R. Armo would submit that the trial Court
has completed mis-appreciated the fact and circumstance arising in the
instant case to record a finding of guilt against the appellant. He would
further submit that there is no evidence on record to prove the alleged
offence against the appellant B.R. Armo and would pray for allowing the
appeal and set aside the conviction.
10. On the other hand, learned counsel for the CBI would submit that the
judgment of conviction and order of sentence passed by the learned trial
Court against the appellants is legal and justified and does not warrant
interference by this Court. He would further submit that the handwriting
expert has given the opinion which clearly proved the involvement of the
appellants and the learned trial Court after appreciating the evidence has
rightly convicted the appellant and would pray for dismissal of the appeal.
11. I have head learned counsel for the parties and perused the record.
12. From the above factual matrix of the case, following point emerged for
determination by this Court is (I) Whether the sanction granted by the
competent authority for permission to prosecute under Section 5(1)(C) of
the PC Act, 1947 is legal and justified (ii) Whether the prosecution by
cogent evidence has proved the offence committed by the appellants
under Section 120 B IPC.
13. For determination of point No.1, it is not in dispute that Bilaspur Raipur
Chhetriya Gramin Bank where the appellants were working is a bank
constituted under the Regional Rural Bank Act, 1976, the said bank is a
subsidy bank of State Bank of India, as per the Act of 1976. The relevant
provision of the Act, 1976 is extracted below:-
(f) "Regional Rural Bank" means a Regional Rural Bank
established under sub- section (1) of section 3;
(g) "Sponsor Bank", in relation to a Regional Rural Bank,
means a bank by which such Regional Rural Bank has been
sponsored; (h) "State Government" means,-- (i) in relation to a
Regional Rural Bank established in a Union territory, the
Central Government; (ii) in relation to a Regional Rural Bank
established in a State, the Government of that State; (i) words
and expressions used herein and not defined but defined in
the Reserve Bank of India Act, 1934 (2 of 1934), shall have
the meanings respectively assigned to them in that Act; (j)
words and expressions used herein and not defined either in
this Act or in the Reserve Bank of India Act, 1934 (2 of 1934),
but defined in the Banking Regulation Act, 1949 (10 of 1949),
shall have the meanings respectively assigned to them in the
Banking Regulation Act, 1949.
Establishment and incorporation of Regional Rural Banks.
3. Establishment and incorporation of Regional Rural Banks.-
(1) The Central Government may, if requested so to do by a
Sponsor Bank, by notification in the Official Gazette, establish
in a State or Union territory, one or more Regional Rural
Banks with such name as may be specified in the notification
and may, by the said or subsequent notification, specify the
local limits within which each Regional Rural Bank shall
operate.
Section. 6. Issued capital.- 4[(1) The issued capital of each
Regional Rural Bank shall, in the first instance, be such as
may be fixed by the Central Government in this behalf, but it
shall in no case be less than twenty-five lakhs of rupees or
exceed one crore of rupees.] (2) Of the capital issued by a
Regional Rural Bank under subsection (1), fifty per cent. shall
be subscribed by the Central Government; fifteen per cent. by
the concerned State Government and thirty-five per cent. by
the Sponsor Bank. (3) The Board may, after consultation with
the 5*[National Bank] concerned State Government and the
Sponsor Bank and with the prior approval of the Central
Government, from time to time, increase the issued capital of
the Regional Rural Bank; and, where additional capital is
issued, such capital shall also be subscribed in the same
proportion as is specified in sub-section (2).
14. From perusal of above stated provisions of the Act, it is quite vivid that
central Government has to provide 50% of financial assistance to the Rural
Bank and 35% by sponsored bank in the present case, State Bank of India
being sponsored bank has provided 35% of financial assistance to the
Gramin Bank, thus, it is sponsored bank of State Bank of India, therefore,
the appellants who are working in Rural Bank are the public servant and
as such they are amenable within the Prevention of Corruption Act, if any
act tantamounts to misconduct under the PC Act, 1947. The Hon'ble
Supreme Court in case of Central Bureau Investigation Bank Security and
Fraud Cell vs. Ramesh Gelli 2016 (3) SCC 788 has examined the
application of Prevention of Corruption Act 1988 to bank employees and
has held as under:-
39. By virtue of Section 46A of the BR Act office
bearers/employees of a Banking Company (including a
Private Banking Company) were "public servants" for the
purposes of Chapter IX of the IPC with the enactment of the
PC Act offences under Section 161 to 165 A in Chapter IX of
Code came to be deleted from the said Chapter IX and
engrafted under Sections 7 to 12 the PC Act. With the
deletion of the aforesaid provisions from Chapter IX of the
IPC and inclusion of the same in the PC Act ought to have
been a corresponding insertion in Section 46A of the BR Act
with regard to the deeming provision therein being continued
in respect of officials of a Banking Company insofar as the
offences under Section Sections 7 to 12 the PC Act are
concerned. However, the same was not done. The Court
need not speculate the reasons therefor, though, perhaps
one possible reason could be the wide expanse of the
definition of "public servant" as made by Section 2(c0 of the
PC Act. Be that as it may, in a situation where the legislative
intent behind the enactment of the PC Act, inter alia, to
expand the definition of "public servant", the omission to
incorporate the relevant provisions of the PC Act Section
46A of the BR Act after deletion of Section 161 to 165 A of
the I.P.C. from Chapter IX can be construed to be a wholly
unintended legislative omission which the Court can fill up by
a process of interpretation.
45.Turing to the case in hand there can be no dispute that
before enactment of the PC Act, Section 46A of the BR Act
had the effect of treating the concerned employees/office
bearers of a Banking Company as public servants for the
purposes of Chapter IX of the IPC by virtue of the deeming
provision contained therein. The enactment of the PC Act
the clear intent to widen the definition of 'public servant'
cannot be allowed to have the opposite effect by expressing
judicial helplessness to rectify or fill up what is a clear
omission in Section 46A of the BR Act. The omission to
continue to extend the deeming provisions in Section 46A of
the BR Act to the offences under Section 7 to 12 of the PC
Act must be understood to be clearly unintended and hence
capable of admitting a judicial exercise to fill up the same.
The unequivocal legislative intent to widen the definition of
"public servant" by enacting the PC Act be allowed to be
defeated by interpreting and understanding the omission in
Section 46A of the BR Act to be incapable of being filled up
by the court.
46.. In the above view of the matter, I also arrive at the same
conclusion as my learned Brother Prafulla C. Pant, J. has
reached, namely, that the accused respondents are public
servants for the purpose of the PC Act by virtue of the
provisions of Section 46 A the Banking Regulation Act, 1949
and the prosecutions launched against the accused
respondents are maintainable in law. Consequently, the
criminal appeals filed by the C.B.I. are allowed and Writ
Petition (Criminal) No. 167 of 2015 is dismissed.
15. Thus submission of the learned counsel for the appellants that the
appellants are not the public servants cannot be accepted, accordingly it is
rejected. It is held that the appellants are the public servants and they are
amenable under the PC Act, 1947.
16. Learned trial Court, after considering the evidence of N.K. Jain (PW-1)
who has stated in the evidence that he has worked with the appellants and
he is acquainted with signature of the appellants ,considering the report of
hand writing expert Harvansh Singh Tuteja (PW-6), who has given the
opinion that the questioned document has been written by OP Singhal and
B.R. Armo, there is no cross-examination on this point by the appellants.
Learned trial Court considering the provisions of Section 47 of the
Evidence Act, the law on the subject and also considering the evidence of
N.K. Jain who has corroborated the opinion given by the hand writing
expert,has held that the debit voucher were made by the appellant OP
Singhal. The Learned trial Court has also considered the evidence of Dilip
Kumar Soni (PW-5), who has stated that in Ex.P-69-1 Ex.P-69-45, transfer
voucher on Rs. 34,545/- has been deposited from Rs. 45,596/- of subsidy
account and remaining Rs. 11,053/- has been adjusted from the cash
vouher ie. Ex.P-70-1 to Ex.P-70-31. He has also stated in para-14 of the
evidence that out of Rs. 45596/- only Rs. 34,545/- have been adjusted
whereas Rs. 11,053/- has not been deposited in the bank account.
Learned trial Court has also recorded its finding that the appellants have
not given explaining of adjustment which clearly demonstrate that
appellants have appropriated the money and thus committed offence
under Section 5(1)(C) of PC Act. Thus, the prosecution has proved the
case against the appellants beyond reasonable doubt. Learned trial Court
has also recorded its finding that appellant B.R. Armo has not produced
any document that he has made complaint regarding misdeed of appellant
O.P. Singhal, therefore, he is also involved in the criminal conspiracy.
17. Learned trial court on the basis of evidence, material on record has held
that the appellants have committed offence under Sections 20-B IPC and
Section 5(1)(C) of the PC Act, 1947 and has convicted them. From
appreciation of evidence and material on record, it is quite vivid that the
finding recorded by the learned trial Court regarding commission of offence
by the appellants does not suffer from perversity, illegality which warrants
interference by this Court. Thus, conviction of the appellants for
commission of aforesaid offence is legal, justified and does not warrant
any interference by this Court From appreciation of evidence, material on
record it is crystal clear that finding recorded by the learned trial Court with
regard to the conviction of the appellants does not suffer from perversity,
illegality which can be interfered by this Court exercising Appellate power.
18. The law with regard to interference of the appellate Court is well reasoned
finding of trial court convicting the appellants under the criminal law has
been well settled by the Hon'ble Supreme Court in the Majjal Vs State of
Haryana reported in 2013 (6) SCC 798 wherein the Hon'ble Supreme
Court has held at para 7 as under;-
"7. It was necessary for the High Court to consider whether
the trial court's assessment of the evidence and its opinion
that the appellant must be convicted deserve to be
confirmed. This exercise is necessary because the personal
liberty of an accused is curtailed because of the conviction.
The High Court must state its reasons why it is accepting the
evidence on record. The High Court's concurrence with the
trial court's view would be acceptable only if it is supported by
reasons. In such appeals it is a court of first appeal. Reasons
cannot be cryptic. By this, we do not mean that the High
Court is expected to write an unduly long treatise. The
judgment may be short but must reflect proper application of
mind to vital evidence and important submissions which go to
the root of the matter."
19. As such, finding of conviction based upon proper appreciation of evidence
is legal, justified and does not warrant any interference by this Court. The
appeals deserve be dismissed. Accordingly, both the appeals are
dismissed.
20. Now this Court has to examine whether in the facts and circumstance of
the case, there is mitigating factors available on record to reduce the
punishment/ sentence awarded to appellants.
21. Learned counsel for the appellants would submit that appellant OP Singhal
was aged about 42 years and appellant B.R. Armo was 44 years, the
incident took place on 24.05.1982, i.e. more than 40 years, the challan
was produced before Special Judge on 25.11.1985 and the appellants are
regularly appearing before the trial Court Jabalpur (MP) since 1986,
though they are residents of Raigarh and Bilaspur and the conviction was
passed on 12.11.1999, thereafter this Court has granted bail to them on
01.12.1999 directing them to appear before the Special Judge, Jabalpur
CBI on 27.03.2000 during pendency of the appeal. It is reported that the
appellants are regularly appearing there. At present appellant OP Singhal
is aged about 80 years and appellant B.R. Armo is aged about 78 years
and their services were terminated by the Bank on account of conviction
passed by the learned Special Court and they are out of employment and
undergone the trial for number of years. Since they have been convicted
by the trial Court for commission of offence, therefore, they must have not
received the pension causing agony and harassment for the proceedings
for over 37 years. These circumstances are mitigating factors which can
be considered by this Court while reducing the sentence as per proviso of
section 5(3)(ii) of the Prevention of Corruption Act, 1947. This issue has
come up for consideration before the Hon'ble Supreme Court in the cases
of Munilal Mochi vs. State of Bihar 2012(12) SCC 546, V.K. Verma v.
Central Bureau of Investigation 9014(3) SCC 485, Ambi Ram v. State of
Uttarakhand 2019(17) SCC 396 and T.M. Joseph vs. State of Kerala 1993
Supp.(1) SCC 465.
22. The Hon'ble Supreme Court in case of Munilal Mochi vs. State of Bihar
2012(12) SCC 546, wherein the Hon'ble Supreme Court has held as
under:-
13. It is not in dispute that the occurrence related to period 1982-
83. Even on 01.10.2003, he retired from the post of Deputy
Collector, Nalanda and stood convicted by the trial Court as
aforesaid only in 2004, i.e., after a long period of 21 years. As
rightly pointed out by Mr. Nagendra Rai, he had undergone the
ordeal of facing trial anticipating uncertainty about the nature of
conviction for such a long period. It is true that the appellant was
not named in the FIR. However, after a period of 5 years, when the
prosecution filed a chargesheet, he was shown as 3rd accused.
14. As rightly pointed out by Mr. Rai, the appellant had reeled
under the threat of being convicted and sentenced for all these 21
years. Even the High Court had taken more than 6 years to dispose
of the appeal. As on date, the appellant is 71 years of age and has
already undergone 6 months imprisonment. If we consider the date
of occurrence, 29 years have been passed now. There is no record
to show that the appellant was involved in other criminal case.
Considering the case of the prosecution, namely, several illegalities
and irregularities in execution of NREP which is a Scheme
formulated by the Government of India, the fact that the occurrence
relates to the year 1982-83, the trial went for 21 years and ended in
conviction in 2004, the appellant retired from service even before
conviction and his appeal was kept pending in the High Court for
nearly 6 years, taking note of his present age, namely, 71 years
and undergone 6 months imprisonment, we feel that ends of justice
would be met by modifying the sentence to the period already
undergone.
23. The Hon'ble Supreme Court in case of V.K. Verma v. Central Bureau of
Investigation 9014(3) SCC 485 wherein the Hon'ble Supreme Court has
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
the 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.
12.The appellant is now aged 76. We are informed that he is
otherwise not keeping in good health, having had also cardio
vascular 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, it would 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.
24. The Hon'ble Supreme Court in case of Ambi Ram v. State of Uttarakhand
2019(17) SCC 396 wherein the Hon'ble Supreme Court has held as
under:-
14. Reading of Section 5(2) of the PC Act shows that it
provides that 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. The proviso then
empowers the Court to impose sentence of imprisonment of
less than one year provided any special reasons are recorded
in writing in support of imposing such reduce sentence of less
than one year.
15. It is, therefore, clear that the Court is empowered to
impose a sentence, which may vary from 1 year to 7 years
with fine. However, in a particular case, the Court finds that
there are some special reasons in favour of the accused then
the Court is empowered to impose imprisonment of less than
one year provided those special reasons are set out in writing
in support of imposing sentence less than one year. So far as
imposing of fine is concerned, it is mandatory while imposing
any jail sentence. How much fine should be imposed depend
upon the facts of each case.
16. In the case of K.P. Singh Vs. State (NCT of Delhi), (2015)
15 SCC 497, this Court on somewhat similar facts considered
the question as to what factors/circumstances should be taken
into consideration for reducing the jail sentence.
17. In his concurring opinion, Justice T.S Thakur (as his
Lordship then was and later CJI) in his distinctive style of
writing in detail examined this question in the light of law laid
down by this Court in earlier cases on the subject and held as
under:
"10. Determining the adequacy of sentence to be
awarded in a given case is not an easy task, just
as evolving a uniform sentencing policy is a tough
call. That is because the quantum of sentence
that may be awarded depends upon a variety of
factors including mitigating circumstances
peculiar to a given case. The courts generally
enjoy considerable amount of discretion in the
matter of determining the quantum of sentence.
In doing so, the courts are influenced in varying
degrees by the reformative, deterrent and
punitive aspects of punishment, delay in the
conclusion of the trial and legal proceedings, the
age of the accused, his physical/health condition,
the nature of the offence, the weapon used and in
the cases of illegal gratification the amount of
bribe, loss of job and family obligations of the
accused are also some of the considerations that
weigh heavily with the courts while determining
the sentence to be awarded. The courts have not
attempted to exhaustively enumerate the
considerations that go into determination of the
quantum of sentence nor have the courts
attempted to lay down the weight that each one
of these considerations carry. That is because
any such exercise is neither easy nor advisable
given the myriad situations in which the question
may fall for determination. Broadly speaking, the
courts have recognised the factors mentioned
earlier as being relevant to the question of
determining the sentence. The decisions of this
Court on the subject are a legion. Reference to
some only should, however, suffice.
19. Given the fact that the trial and appeal
proceedings have in the case at hand continued
for nearly 17 years by now causing immense
trauma, mental incarnation (sic incarceration) and
anguish to the appellant and also given the fact
that the bribe amount was just about Rs 700 and
that the appellant has already undergone 7½
months imprisonment against the statutory
minimum of 6 months' imprisonment, the
reduction of the sentence as proposed by my
esteemed Brother appears to be perfectly in
order. I, therefore, concur with the view taken by
his Lordship."
18. Keeping in view the aforementioned statement of law laid
down by this Court when we examine the facts of the case at
hand, we find that Firstly, the incident is of the year 1985;
Secondly, this case is pending for the last 34 years; Thirdly, the
appellant has now reached to the age of 78 years; Fourthly, he
is suffering from heart ailment, as stated by the learned counsel
for the appellant, and is also not keeping well; Fifthly, he has so
far, during the trial and after suffering conviction, undergone
total jail sentence of one month and 10 days; Sixthly, he has
been on bail throughout for the last 34 years and did not
indulge in any criminal activities nor breached any conditions of
the bail granted to him; Seventhly, the bribe amount was
Rs.1200/; and lastly, in the last 34 years, he has suffered
immense trauma, mental agony and anguish.
19. The aforesaid 8 reasons which, in our view, are the special
reasons satisfy the requirements of proviso to Section 5(2) of
the PC Act. This Court, therefore, invoke the powers under
proviso to Section 5(2) of the PC Act and accordingly alter the
jail sentence imposed on the appellant by the two Courts below
and reduce it to "what is already undergone by the appellant",
i.e., 1 month and 10 days.
25. The Hon'ble Supreme Court in case of T.M. Joseph vs. State of Kerala 1993
Supp.(1) SCC 465 wherein the Hon'ble Supreme Court has held as under:-
4. Now coming to the question of sentence, there are certain
circumstances which have to be taken into consideration. The
occurrence took place on 6-10-75. It is nearly 16 years ago
since then the accused was out of the job and has undergone
the trial for number of years. It is also submitted that up till now
he has not received his pension and he has a large family to
maintain. Further, he is aged about 65 years. In similar
circumstances; this Court in B.C. Goswami v. Delhi
Administration, has observed that "appellant suffered agony
and the harassment of the proceedings for over seven years
and that he is also going to lose his job and has to earn for
himself and his family members and for those dependent on
him and, therefore, to meet the ends of justice the sentence is
reduced to the period already undergone."
26. The Hon'ble Supreme Court in case of B.D. Goswami Vs. Delhi
Administration 1974 (3) SCC 85 wherein the Hon'ble Supreme Court has
held as under:-
As already observed, the appellant's conviction under Section
161 IPC 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 question which arises is that under
Section 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 Rs- 200/- to
Rs. 400/-. Period of imprisonment in case of default will remain
the same.
27. Now coming to the question of sentence, there are certain circumstances
which have to be taken into consideration. The occurrence which took place
on 24.05.1982, order of conviction was passed on 12.11.1999, which is
more than 23 years ago since then the accused/appellants were out of the
job and have undergone the trial for number of years, considering that till
now appellants O.P. Singhal and B.R. Armo have not received their pension
and they have a large family to maintain. Further, appellant OP Singhal is
aged about 82 years and appellant B.R. Armo is aged about 80 years and
also considering that appellants have suffered agony and the harassment of
the proceedings for over 38 years and that have also lost their jobs and
have to earn for themselves and their family members and for those
dependent on them and, also considering the law laid down in the
aforementioned cases, therefore, ends of justice would be served if
sentence of fine amount awarded by the trial Court with respect to offence
under Sections 120-B IPC and Section 5(1)(C) read with section 5(2) of the
Prevention of Corruption Act, 1947 is enhanced from Rs. 50,000/- instead of
Rs. 10,000/- each of the appellants while maintaining the conviction.
Accordingly I hereby confirm the conviction and reduce the sentence of 2
yeas rigorous imprisonment to till rising of the Court on each count. The
sentence of fine, however, is enhanced to the tune of Rs. 50,000/- to be
paid by each of the appellants. The sentences shall run concurrently. The
appellants are directed to deposit the fine amount within two months from
the date of judgment before Learned C.B.I Court Raipur. It is worthwhile to
mention here that after reorganization of State of Madhya Pradesh as State
of M.P. and State of Chhattisgargh the Jurisdiction of C.BI. Court Jablapur
so far as relates to offence cognizable by CBI arising in the territorial of
Chhattisgarh is cognizable by CBI Raipur, failing which the appellants have
to undergo sentence as awarded by the learned Trial Court.
28. In view of above what has been discussed above and modification of the
sentence both the appeals are partly allowed while reducing the sentence of
conviction as awarded by the Special Court. The appellants are reported to
be on bail. Their bail bonds shall continue in view of Section 437-A of CrPC.
Sd/-
(Narendra Kumar Vyas)
Judge
Later On
29. In pursuance of the judgment passed by this Court today, the appellant in
CRA No. 3057 of 1999 namely B.R. Armo & in CRA No. 3175 of 1999
namely O.P. Singhal are remained present before this Court till 4:30 p.m. for
undergoing the imprisonment as awarded to them i.e. till rising of the Court.
Sd/-
(Narendra Kumar Vyas)
Judge
Santosh
