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CASE NO.:

Appeal (crl.) 82 of 2001

Special Leave Petition (crl.) 3028 of of

PETITIONER:

STATE OF JAMMU & KASHMIR

Vs.

RESPONDENT:

VINAY NANDA

DATE OF JUDGMENT: 16/01/2001

BENCH:

R.P.Sethi, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

SETHI, J.

Leave granted. Corruption at any level, by any

person, of any magnitude is condemnable which cannot be

ignored by the judicial courts, when proved. No leniency is

required to be shown in proved cases under the Prevention of

Corruption Act which itself treats the offences under it of

a special nature to be treated differently than the general

penal offences. The convicts of the offences under the Act

are to be dealt with heavy hand and deterrent rod. No

populous or sympathetic approach is needed in such cases.

The only exception is the existence of special circumstances

for awarding the minimum sentence. The important point of

law involved in the present appeal is as to whether the

benefit of Jammu & Kashmir Probation of Offenders Act can be

extended to the convicts under the Jammu & Kashmir

Prevention of Corruption Act, Svt. 2006 (hereinafter

referred to as "the Act"). The facts giving rise to the

determination of the question noted hereinabove are that the

respondent, when posted as cashier in the Procurement

Department of the State of Jammu & Kashmir, tampered the

record regarding the carriage of store articles to and fro

through RTC vehicles. The word "RTC" was changed into "one

RTC Vehicles" and the words "RTC was changed into the words

"BTC". After withdrawing Government money for making

payment to the carriers, the respondent was alleged to have

misappropriated the amount with the connivance of his

superior officers. It was specifically stated in the

complaint filed against him that with the connivance of the

Account Officer Shri Babu Ram Sharma the respondent encashed

a cheque of Rs.89,000/- from the Treasury and

misappropriated the same. On receipt of the complaint

against the respondent, a preliminary enquiry was conducted

during which it transpired that accused had in fact

misappropriated the amount upon which a regular FIR No.23 of

1987 was registered and investigation commenced. During the

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investigation it was found that Cheque No.0547185 for an

amount of Rs.97,952.11 was encashed by the

respondent-accused but instead of remitting the amount into

the Treasury, he misappropriated the same. To conceal the

embezzlement he defalcated the account by making a false

entry of remittance in cash book at Page No.41. The accused

confessed the non remittance of the account and when show

cause notice was issued to him on 1.3.1985, he refunded the

said amount in different instalments during the years

1985-87. After completion of the investigation charge-sheet

was filed in the court of Special Judge, Anti Corruption,

Jammu who charged him for the commission of offences under

Section 5(2) of the Act and Sections 409 and 468 of the

Ranbir Penal Code vide its order dated 1st May, 1991. The

accused pleaded not guilty to the charge and claimed to be

tried. To prove its case, the prosecution had examined

S/Sh. Davinder Singh, Shambu Nath, Dharampal, Om Parkash,

Nertar Parkash, Babu Ram, Romesh Kumar Bali, Khajour Singh,

Suram Singh, Bal Krishan, Jagdish Chander, Radhey Shayam,

Kuldeep Khoda, R.P. Abrol and Ranbir Singh as witnesses.

In his statement recorded under Section 342 of the Code of

Criminal Procedure corresponding to Section 313 of the

Central Criminal Procedure Code, the respondent denied all

the allegations. After critically examining the evidence

led in the case, the Special Judge, vide an elaborate

judgment found the respondent guilty of commission of

offences under Section 5(1)(c) of the Act and Section 409

and 468 of the Ranbir Penal Code. Upon his conviction the

respondent was sentenced to undergo imprisonment for one

year on each count besides paying a total fine of

Rs.16,000/-. All the sentences were directed to run

concurrently. Not satisfied with the judgment of the

Special Judge, the respondent filed an appeal which was

disposed of by the judgment impugned in this case by

upholding the conviction of the respondent but giving him

the benefit of probation under the Jammu & Kashmir Probation

of Offenders Act. He was directed to furnish a bond for

maintaining good conduct for a period of three years and to

pay costs in terms of Section 5(1)(b) of the said Act which

were assessed at Rs.2000/-. The costs were to be deposited

with the Registrar (Judicial) within a period of three

months. In case that direction was not complied with, the

respondent was ordered to suffer jail sentence for six

months. Feeling aggrieved by the judgment of the High

Court, the present appeal has been filed by the State.

However, the respondent has not challenged the finding of

fact arrived at by the High Court. In his judgment, the

learned Single Judge of the High Court held: "The facts

which are undisputed are:

i. That a sum of Rs.97,952.11 was withdrawn by the

appellant by self cheque No.0547185. This was done on

30.8.1984.

ii. The aforementioned amount was not deposited in

the account.

iii. That a Senior Officer namely Babu Ram on

checking the account found that the aforementioned amount

though withdrawn was not deposited in the State Treasury.

iv. That an enquiry was held. Thereafter the

appellants deposited the amount on various dates. This was

of course done before the present criminal investigation

started in this case."

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The plea of the respondent that while he was on his

way to deposit the entire amount in the Jammu & Kashmir Bank

a sum of Rs.40,000/- was lost, was held to have been not

substantiated. Deposits were proved to have been made after

the factum of withholding the money by the respondent came

to the notice to his superior officer, Sh.Babu Ram Sharma.

The trial court as well as the High Court has concurrently

held the accused guilty for the commission of the offences

with which he was charged. However, the High Court was

persuaded to take a sympathetic view in the matter on the

existence of circumstances justifying a lenient action and

benefit of the Jammu & Kashmir Probation of Offenders Act

was given as noticed earlier. It appears that the learned

Single Judge of the High Court was not apprised of the

relevant provisions of the Jammu & Kashmir Probation of

Offenders Act, 1966 (hereinafter referred to as "the 1966

Act") which resulted in the passing of the judgment

impugned. Sub-section (3) of Section 1 of the 1966 Act

provides that: "It shall come into force on such date as

the Government may, by notification in the Government

Gazette, appoint and different dates may be appointed for

different parts of the State."

The Act has been enforced in the Cities of Jammu &

Srinagar w.e.f. 15th May, 1969 by SRO 267 dated 3rd May,

1969 and in the Districts of Jammu & Srinagar w.e.f. 15th

January, 1970 by SRO 23 dated 15th January, 1970. Despite

its extension to whole of the State of Jammu & Kashmir its

provisions are not shown to have been applied to the other

parts of the State. Section 18 of the said Act reads:

"Saving of operation of certain enactments: Nothing, in

this Act shall, affect the provision of sub-section (2), of

section 5 of the Jammu and Kashmir Prevention of Corruption

Act Svt. 2006 or the supersession of Immoral Traffic in

Woman and Girls Act, 1956 (Central Act of 1956) or any law

in force in the State relating to Juvenile Offenders."

In view of unambiguous and categoric provisions of

Section 18 of the Jammu & Kashmir Probation of Offenders

Act, it is incumbent upon us to hold that the High Court was

not justified in giving the respondent the benefit of the

Jammu & Kashmir Probation of Offenders Act as the said Act

was not applicable to offences under the Act. We are sure

that had the provisions of the 1966 Act been brought to the

notice of the High Court, the order impugned could not have

been passed. The judgment impugned in this appeal is,

therefore, liable to be set aside. Faced with this

situation, the learned counsel for the respondent submitted

that the case be remitted back to the High Court for

deciding it afresh. We are not impressed by this submission

inasmuch as concededly the respondent has not filed any

appeal against the finding of conviction recorded by both

the courts against him. Under the circumstances of the case

no useful purpose would be served by remanding the case.

Mr.Jaspal Singh, learned Senior Advocate appearing for the

respondent then submitted that as there exist special

circumstances, the respondent be not sent to the jail at

this stage particularly when he has complied with the

directions of the High Court. To appreciate this submission

a reference has to be made to the provisions of the Act

prescribing sentence upon conviction under it. Section 5(2)

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of the Act, as substituted by Act No.9 of 1993, provides:

"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 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 but not less than six months."

It is the mandate of law that a person convicted under

the Act can be sentenced for a term upto seven years and not

less than one year. According to the proviso, the sentence

can further be reduced to six months only "for any special

reasons recorded in writing". Relying upon the judgments of

this Court in Aditya Nath Pandey v. State of U.P. [2000

SCC (Cri.) 1206, Vidyadhar Ganesh Lanjekar v. State of

Maharashtra [1993 Cri.Law Journal 3667] and Ghulam Din Buch

& Ors. v. State of J & K [1996 (9) SCC 239] the learned

Senior Counsel appearing for the respondent has submitted

that in view of peculiar and special circumstances of this

case, the ends of justice would be met only by awarding the

sentence of fine to his client without sending him to jail

at this stage. However, the perusal of the aforesaid

judgments indicates that in none of the cases the Court

considered the effect of provisions of law prescribing the

minimum sentence upon conviction under the Act. Where the

mandate of law is clear and unambiguous, the Court has no

option but to pass the sentence upon conviction as provided

under the statute. In Ghulam Din Buch's case the Court

considered the scope of Section 5(2) of the Act prior to its

amendment, when it observed: "Though the proviso permits

not to impose a sentence of imprisonment at all and confines

the sentence to fine only, we do not think if the present is

a case where the punishment to be awarded should be only

fine, as any softness in this regard would produce an

undesirable result, namely, encouragement to adoption of

corrupt means by public servants which has indeed to be

checked, and not allowed to be encouraged. Keeping in view

all the attending circumstances, we are of the view that a

sentence of RI for two months would be adequate sentence,

apart from the fine of Rs.15,000/-."

The mitigating circumstances in a case, if

established, would authorise the Court to pass such sentence

of imprisonment or fine which may be deemed to be reasonable

but not less than the minimum prescribed under an enactment.

On behalf of the respondent it has been argued in the

alternative that upon conviction the minimum sentence in

terms of proviso to sub-section (2) of Section 5 of the

Court be awarded in the case. For imposing the minimum

sentence the court has to record special reasons. 'Special

reasons' have to be distinguished from 'good' or 'other

reasons'. The fact that the convict had reached his

superannuation is not a special reason. Similarly pendency

of criminal case for over a period of time can also not be

treated as a special reason. Prolonged litigation in the

country is admittedly a general reason in criminal cases.

This Court under similar circumstances in Jagjeevan Prasad

v. State of M.P. [2000 (8) SCC 22] observed: "Yet another

consequence would be that if any public servant succeeds in

protracting the criminal proceedings to the stage of

superannuation he can also claim the benefit of "special

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reasons", if the High Court's reasoning is to be accepted.

We find the High Court's approach not only erroneous but

prenicious, and therefore, impermissible in law. Such a

ground cannot by any stretch of imagination be treated as

"special reasons"."

The respondent has filed an affidavit in this Court

stating therein that he was facing the trial since 1987 and

the amount allegedly misappropriated has already been

deposited by him with the Government. He submits to have

been punished departmentally vide orders of the Chief

Engineer dated 13.1.1993. He claims to be the only bread

earner in the family who has to support his wife, one

unmarried daughter and two sons aged about 18 and 17 years.

None of the circumstances, stated in his affidavit, by

itself constitute a "special reason". However, keeping in

view the general conspectus of the case, we feel that under

the totality of the circumstances narrated, the respondent

has made out a case for invoking the proviso to Sub-section

(2) of Section 5 of the Act. We have further been persuaded

to give him such a benefit in view of the observations made

in his favour by the trial court in para 55 of its judgment

and the High Court in the judgment impugned before us.

Under the circumstances, the appeal is allowed by setting

aside the impugned judgment of the High Court and restoring

the judgment of the trial court by which the

accused-respondent has been convicted and sentenced for

offence as noticed earlier. However, giving the respondent

benefit of proviso to sub-section (2) of Section 5 of the

Act, the sentences of imprisonment awarded to him for all

the offences are reduced from one year to six months. Such

terms of imprisonments of the sentences would run

concurrently. Sentences of fine imposed upon the respondent

amounting to Rs.16,000/- in all are also reduced to

Rs.5,000/-. The respondent shall be taken into custody to

undergo the sentence on all account for a period of six

months and to pay the fine in terms of the order of the

trial court. In default of the payment of fine he will

undergo further imprisonment as awarded to him by the trial

court.