Sikkim High Court
Trilochan Kapoor Sharma vs State Of Sikkim on 2 May, 2023
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
Dated : 2nd May, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.40 of 2018
Appellant : Trilochan Kapoor Sharma
versus
Respondent : State of Sikkim
An Appeal under Section 374(2) read with Section 482 of
the Code of Criminal Procedure, 1973 and Section 27 of
the Prevention of Corruption Act, 1988.
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Appearance
Mr. B. Sharma, Senior Advocate with Mr. Rajendra Upreti, Mr. Safal
Sharma, Ms. Puja Singh, Ms. Shreya Sharma, Ms. Roshni Chettri
and Ms. Sweta Karki, Advocates for the Appellant.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar and Mr. Shakil Raj Karki, Assistant Public Prosecutors for
the State-Respondent.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Accused/Appellant was charged with a total of thirteen counts, for offences under Sections 419, 420, 468, 471 and 201 of the Indian Penal Code, 1860, (hereinafter, the "IPC"), and one count under Section 13(1)(d)(i) of the Prevention of Corruption Act, 1988, (hereinafter, the "PC" Act). It is alleged that he defalcated a total sum of ₹ 62,511/- (Rupees sixty two thousand five hundred and eleven) only, during the period January, 2012 to May, 2012, from the Department of Economics, Statistics, Monitoring and Evaluation (for short, the "DESM&E"), Government of Sikkim, where he was serving on deputation as a Deputy Director (Administration). The Appellant entered a plea of "not guilty" to the Charges. On conclusion of the trial he was convicted of all the offences (supra), vide the impugned Judgment, dated 29- Crl.A. No.40 of 2018 2 Trilochan Kapoor Sharma vs. State of Sikkim 09-2018, in Sessions Trial (Vigilance) Case No.01 of 2017, of the Court of the Special Judge, Prevention of Corruption Act, 1988, South Sikkim, at Namchi. By the assailed Order on Sentence of the same date, for the offences under the IPC, he was sentenced to 6 months simple imprisonment under each count, with fine imposed and default clause of imprisonment. For the offence under the PC Act, he was sentenced to undergo simple imprisonment for a period of one year with fine imposed and a default clause of imprisonment. The sentences of imprisonment were ordered to run concurrently, setting off the period of imprisonment already undergone by the Appellant during the investigation and trial. Aggrieved thereof, he is before this Court.
2. Learned Senior Counsel for the Appellant put forth multipronged arguments contending firstly that;
(i) During the period when the offence was committed i.e., from January, 2012, to May, 2012, the Appellant was suffering from mental illness and was therefore entitled to the exception delineated in Section 84 of the IPC. The Learned Trial Court however failed to extend this benefit by neglecting to invoke the provision of Section 328 of the Code of Criminal Procedure, 1973, (for short, the "Cr.P.C."), to consider the mental health of the Appellant and the circumstances that preceded, attended and followed the alleged offences. That, Exhibit X1 and Exhibit X2, the medical papers pertaining to the Appellant issued by D.W.1, Dr. Chandra Shekhar Sharma, Head of the Department, Psychiatry, at STNM Hospital, Gangtok, who treated him for mental illness from 2008 and referred him to National Institute of Mental Health and Neurosciences (hereinafter, the "NIMHANS"), Bangalore and one Dr. P. T. Shivakumar, NIMHANS, who evaluated the Appellant from Crl.A. No.40 of 2018 3 Trilochan Kapoor Sharma vs. State of Sikkim 02-08-2012 to 29-08-2012 and diagnosed him with schizophrenia and the fact that the Appellant has been continuously suffering from mental illness since 2008 was ignored by the Learned Trial Court. The evidence of D.W.1 clarifies that schizoaffective disorder may continue for months together depending upon the treatment however, baseline psychotic symptoms continue. The evidence of D.W.1 is supported by the evidence of D.W.2, the Appellant‟s wife, with regard to his mental illness and hospitalization at the Government Hospital in Gangtok and thereafter in NIMHANS, Bangalore. D.W.3 corroborated the evidence of both D.Ws 1 and 2 by stating that the Appellant was ill since 2008 and had been admitted to the Psychiatric ward of the STNM Hospital. That, to prove insanity the Appellant is to discharge his burden by establishing a "preponderance of probabilities" and "not beyond a reasonable doubt". To buttress his submissions, reliance was placed on the decisions of the Supreme Court in Shrikant Ananda Rao Bhonsle vs. State of Maharashtra1, Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat2, Bapu @ Gajraj Singh vs. State of Rajasthan3, Surendra Mishra vs. State of Jharkhand4, Hari Singh Gond vs. State of Madhya5, Devidas Loka Rathod vs. State of Maharashtra6. Reference was also made to Chapter 36 of Modi, A Textbook of Medical Jurisprudence and Toxicology, 25th Edition, 2016, on mental illness and that the gamut of evidence on record points to the mental unsoundness of the Appellant, which entitles him to the exemption laid down in Section 84 of the IPC.
(ii) In the next leg of his argument, drawing the attention of this Court to Exhibit 161, „Sanction‟ to Prosecute the Appellant, it 1 (2002) 7 SCC 748 2 AIR 1964 SC 1563 3 (2007) 8 SCC 66 4 (2011) 11 SCC 495 5 (2008) 16 SCC 109 6 (2018) 7 SCC 718 Crl.A. No.40 of 2018 4 Trilochan Kapoor Sharma vs. State of Sikkim was argued that sanction had not been obtained from the competent authority as required by law and procedure. That, P.W.49, the Investigating Officer (I.O.) submitted the Charge- Sheet on 19-08-2014, whereas the sanction for Prosecution is dated 14-06-2014, which is revelatory of the circumstance that the sanctioning authority was not seized of the matter in its entirety to enable application of mind. Besides, the sanction was vitiated having been accorded by the Additional Secretary, (Confidential), Home Department, Government of Sikkim, who was incompetent to grant such sanction lacking the authority to remove the Appellant from service. Reliance was placed on Bhagwan Jagannath Markad and Others vs. State of Maharashtra7 and C.B.I vs. Ashok Kumar Aggarwal . That, the Learned Trial Court eventually failed to 8 pronounce a conclusion on the validity of the sanction.
(iii) The third aspect of the arguments raised was that during the course of investigation, the I.O. required the Appellant and one Priya Sharma to give their specimen handwriting for expert examination and opinion, without the prior permission of the Court. That, although the Learned Trial Court concluded that the opinion of the Handwriting Expert, P.W.42, is not conclusive proof, it was urged that P.W.42 ought to have explained to the Court all details for arriving at his conclusion, for which reliance was placed on Murari Lal vs. State of Madhya Pradesh9.
(iv) The fourth argument raised was that the apology letter, Exhibit 17, dated 23-05-2012, attributed to the Appellant, was in fact executed when he was not mentally stable and it was prepared by P.W.7. That, the other officers and P.W.8, the Head of the 7 (2016) 10 SCC 537 8 AIR 2014 SC 827 9 (1980) 1 SCC 704 Crl.A. No.40 of 2018 5 Trilochan Kapoor Sharma vs. State of Sikkim Department of the Appellant‟s workplace pressurized the Appellant to submit the apology letter.
(v) Advancing the fifth argument, it was contended that the Appellant was not singly responsible for the offence as the embezzled sum was approved by the Accounts Section of the Department, revealing the complicity of P.Ws 7, 14 and 15 in the offences, but the Appellant alone was foisted with the crime. That, during the course of investigation, the Appellant reimbursed a sum of ₹ 66,834/- (Rupees sixty six thousand eight hundred and thirty four) only, to make good the alleged embezzled amount, although the Appellant had not signed on any of the receipts acknowledging receipt of the defalcated amount of money.
(vi) It was next contended that not only were there discrepancies in the seizure of documents but the Learned Trial Court, relied on photocopies of documents which are inadmissible in evidence.
(vii) The ultimate argument advanced was the plea that, should this Court be inclined to agree with the findings of the Learned Trial Court, then the Sentence of imprisonment imposed under each of the Sections of law, may be reduced to one month each and the Sentences be ordered to run concurrently, in consideration of the present deteriorating mental health status of the Appellant.
3. Repudiating vehemently the arguments placed by the Learned Senior Counsel for the Appellant, Learned Additional Public Prosecutor for the State-Respondent submitted that, there are no medical documents to establish, that the Appellant was suffering from unsoundness of mind during the period of offence i.e., January, 2012 to May, 2012, neither does the evidence of D.W.2 Crl.A. No.40 of 2018 6 Trilochan Kapoor Sharma vs. State of Sikkim substantiate this ground. Relying on State of Sikkim vs. Rupesh Manger (Thapa)10 it was urged that the requirements of insanity have been elucidated therein and the Appellant has failed to fulfill the criteria. That apart, Exhibit 17, the apology letter was issued on 23-05-2012, as the Appellant admitted therein to having committed the said offence, thereby ruling out the excuse of mental illness. That, the allegation made against P.W.8 pertaining to duress on the Appellant to submit the apology letter is dispelled by the evidence of P.W.5. The Appellant on having admitted his guilt before P.W.8 and others voluntarily submitted the apology letter. P.W.16 too heard the Appellant voluntarily admitting to P.W.8 about having cheated the Department, submitting false transfer Orders, false relieving Order, false last pay certificate pertaining to Priya Sharma and Ranjit Rai. P.Ws 7, 14 and 15, officials of the Department have also established the fact of embezzlement by the Appellant. Inviting the attention of this Court to Gokak Patel Volkart Ltd. vs. Dundayya Gurushiddaiah Hiremath and Others11, it was contended that the offence was a continuing offence, planned and executed by the Appellant over a period of time, from where he reaped financial benefits, hence the plea of mental unsoundness is obnoxious. That, the evidence of D.W.2, the Appellant‟s wife, in fact supports the Prosecution version, having deposed that her husband regularly attended office in a normal condition prior to registration of the case and during that period he was promoted from Administrative Officer to Deputy Director.
(i) On the point of sanction it was countered that the competence of the sanctioning authority was never assailed at the 10 Crl.A. 08 of 2020, High Court of Sikkim, decided on 24-08-2022. 11 (1991) 2 SCC 141 Crl.A. No.40 of 2018 7 Trilochan Kapoor Sharma vs. State of Sikkim trial nor was the witness cross-examined on this aspect, hence, this question cannot be raised belatedly in Appeal.
(ii) That, the Learned Trial Court has given reasons for not depending on the handwriting expert‟s evidence hence no error emanates therein. In any event, documentary evidence on record and evidence of the Prosecution witnesses have established the complicity of the Appellant in offence. The question of the other officers of DESM&E being in league with the Appellant to commit the offence is a feeble attempt to rope in the innocent and protect himself. The guilt of the Appellant is evident not only from Exhibit 17 (supra), but also from his voluntary reimbursement of a sum of ₹ 66,834/- (Rupees sixty six thousand eight hundred and thirty four) only, in cash, to the State Treasury, being the approximate embezzled amount. Consequently, in light of the arguments advanced, the impugned Judgment and Order on Sentence, be upheld.
4. The questions that fall for consideration before this Court are;
(i) Whether the Appellant is entitled to the benefit of Section 84 of the Cr.P.C.?
(ii) Whether the Sanction for Prosecution is valid?
(iii) Whether the Appellant had committed the offences as charged?
(i) Before dealing with the afore framed questions, the facts are briefly being narrated herein, to comprehend the matter in its entirety. The Prosecution case is that the Vigilance Department, Government of Sikkim, on receipt of a reference from P.W.8, Director General-cum-Secretary, DESM&E, Government of Sikkim, alleging that the Appellant on the strength of forged and fabricated documents created false entities, purporting to be one Crl.A. No.40 of 2018 8 Trilochan Kapoor Sharma vs. State of Sikkim Priya Sharma, LDC and one Ranjit Rai, MR Driver, fraudulently prepared salary bills in their names and misappropriated the money. A preliminary enquiry was conducted by P.W.43 of the Vigilance Department, which revealed that the DESM&E had received two transfer Orders sometime in the month of January, 2012. The first one pertaining to one Priya Sharma, LDC, (Exhibit
20), dated 21-01-2012, allegedly issued by Department of Personnel, Administrative Reforms, Training and Public Grievances (hereinafter, "DoPART"), indicating her transfer from the Human Resource Development Department, (hereinafter, the "HRDD"), District Office, North Sikkim, to DESM&E, Gangtok. A second Order, dated 16-02-2012 (Exhibit 22), was also received relieving her from duty in North Sikkim and her last pay certificate, Exhibit 13, dated 11-02-2012, allegedly issued by the HRDD. The transfer Order pertaining to one Ranjit Rai said to be a driver on the Muster Rolls of the Health and Family Welfare, Government of Sikkim (hereinafter, the "Health Department"), (Exhibit 19), dated 16-01- 2012, was alleged to have been issued by the Deputy Director, transferring him to DESM&E, Gangtok. The Appellant submitted documents, purporting to be joining Reports in respect of the two individuals named above Exhibit 21, for Priya Sharma and Exhibit 18, for Ranjit Rai. Thereafter, he arranged for withdrawal of their salaries, received and misappropriated the salary amounts, fraudulently drawing a sum of ₹ 62,511/- (Rupees sixty two thousand five hundred and eleven) only. ₹ 45,186/- (Rupees forty five thousand one hundred and eighty six) only, was drawn in respect of Priya Sharma, LDC for three months, (Feburary, 2012 to April, 2012). ₹ 17,325/- (Rupees seventeen thousand three hundred and twenty five) only, was drawn in respect of MR Driver, Crl.A. No.40 of 2018 9 Trilochan Kapoor Sharma vs. State of Sikkim Ranjit Rai, for four months (January, 2012, to April, 2012). No person by the name of Priya Sharma was ever employed in the HRDD and the person by the name of Ranjit Rai did not exist in the Health Department. Hence, all of the documents mentioned above were found to be fraudulent. When the fraud was detected, the Appellant was confronted by P.W.8, upon which he submitted, Exhibit 17, an apology letter admitting to the aforementioned acts of impropriety. Hence, a criminal case was registered against the Appellant under Sections 468, 471, 420/477A of the IPC read with Section 13(1)(d)(ii) of the PC Act and endorsed to P.W.49, Police Inspector (PI) L.B. Chettri for investigation. Investigation inter alia revealed that the Appellant was posted on deputation in the DESM&E office, Gangtok from IRBn, Piplay, West Sikkim, vide Office Order dated 09-12-2011, as an Administrative Officer from 17-12-2011 to 27-01-2012. He was promoted on 28-01-2012 as Deputy Director and while in charge of the Administration in the office, committed the offences as Charged. Based on the investigation, Charge-Sheet was submitted by P.W.49 against the Appellant under Sections 420, 468, 471, 416, 419, 201 of the IPC and under Section 13(2) read with Section 13(1)(d) of the PC Act.
5. The findings of the Learned Trial Court in the impugned Judgment are being briefly examined. The Learned Trial Court dealt firstly with the question as to whether the Accused was a public servant during the relevant time and concluded that he was, in light of the Prosecution evidence and the fact being undisputed by the Appellant. The second question dealt with by the Learned Trial Court was whether the Accused being the Deputy Director, DESM&E, had on the strength of forged and fabricated documents, created false entities of Priya Sharma as LDC and Ranjit Rai as Crl.A. No.40 of 2018 10 Trilochan Kapoor Sharma vs. State of Sikkim Muster Roll (MR) Driver and fraudulently prepared, drawn their salaries and misappropriated the same. The Court found that the enquiry of P.W.43 led to the finding that salary was fraudulently drawn in the name of Ranjit Rai amounting to ₹ 17,325/- (Rupees seventeen thousand three hundred and twenty five) only, for 4 months from January, 2012 to April, 2012 and for Priya Sharma ₹ 45,186/- (Rupees forty five thousand one hundred and eight six) only, for 3 months from February, 2012 to April, 2012, of a total sum of ₹ 62,511/- (Rupees sixty two thousand five hundred and eleven), only. P.Ws 2 and 6, both Officers of DESM&E had deposed with regard to Exhibits 9 and 10, Files of the Department. P.W.6 harbouring doubts about the documents pertaining to Priya Sharma and Ranjit Rai, processed Files, Exhibits 9 and 10 and forwarded it to the concerned Departments, for verification. The Health Department informed that the Office Order of Ranjit Rai was not issued by the Department and the HRDD opined that the documents pertaining to Priya Sharma were fake. The evidence of P.W.7 with regard to Exhibit 18 (supra), Exhibit 19 (supra), Exhibit 20 (supra), Exhibit 21 (supra), were examined and found to be fake by the Court. P.W.7 was aware about Exhibit 17, the apology letter and deposed accordingly. Exhibits 23 to 56 supporting various aspects of the Prosecution case were also examined. The Learned Trial Court on consideration of the evidence of Prosecution Witnesses and the documentary evidence, concluded that, Ranjit Rai and Priya Sharma were not employees of DESM&E nor were they ever employed under any Government Department in any District. It was the Accused who had fabricated transfer Orders and joining Reports of Ranjit Rai and Priya Sharma, and collected Crl.A. No.40 of 2018 11 Trilochan Kapoor Sharma vs. State of Sikkim their salaries from the Office of the DESM&E, unsuspected by the staff of the Department.
(i) The third question that the Learned Trial Court considered was as to who had prepared the transfer Orders, joining Reports of Ranjit Rai and Priya Sharma. The evidence of P.W.46, the proprietor of a firm that deals in printing of stationeries and manufacture of rubber stamps proved that the Appellant used to visit their printing press. False rubber stamps were prepared and used to create false documents by the Appellant identified as Exhibit 17(g), Exhibit 19(b) and Exhibit 21(b) on Exhibits 17, 19 and 21. P.Ws 38, 39, 41 and 49 were witnesses to the specimen handwriting collected by the Prosecution from the Appellant and his daughter, Priya Sharma. The evidence of P.W.45 proved that Priya Sharma was a student of the college of P.W.45, studying M.A. in English. Priya Sharma was also examined as P.W.47, she proved that she was never employed in Government service prior to her appointment as a Post Graduate Teacher, in English, in Central Pendam School in the year 2014. It was concluded that the evidence of the Prosecution established the commission of the crime by the Appellant.
(ii) The Learned Trial Court had considered whether the Accused was suffering from mental illness and on considering Exhibits X1 and X2 attested copies of medical reports furnished by D.W.1, found that legal mental disorder was unproved as the medical documents produced by the Accused and exhibited by D.W.1 do not establish that at the particular point of time the Accused was incapable of knowing the nature of his acts. Consequently, the impugned Judgment and Order on Sentence were pronounced.
Crl.A. No.40 of 2018 12
Trilochan Kapoor Sharma vs. State of Sikkim
6. While addressing the first question for consideration of this Court, Section 84 of the IPC reads as follow;
"84. Act of a person of unsound mind.--
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."
(emphasis supplied)
(i) The most elaborate and authoritative exposition of the law of insanity in common law is embodied in Daniel M‟Naghten‟s case. It is interesting to recapitulate here that in January, 1843, at the parish of Saint Martin, Middlesex, England, Daniel M‟Naghten shot Edward Drummond, who he believed to be the British Prime Minister Robert Pell, with a pistol, wounding him fatally. Drummond died five days later and M‟Naghten was charged with his murder. He pleaded „not guilty‟ by reason of insanity. Medical evidence was furnished which stated that persons of otherwise sound mind might be affected by morbid delusions and that, M‟Naghten was so affected. That, a person laboring under such delusion might usually possess a moral perception of right and wrong, but in relation to acts connected to their delusion, may be carried beyond the power of their own control, leaving them with no such perception. In relation to the charge against M‟Naghten, the question to be determined was, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. Evidence brought before the Court about the condition from which M‟Naghten suffered stated that, a man may go on for years quietly whilst under the delusion‟s influence, but had the potential to break out into extravagant and violent paroxysm. M‟Naghten was „acquitted‟ as being incapable of exercising control over his acts whilst under his delusion.
Crl.A. No.40 of 2018 13
Trilochan Kapoor Sharma vs. State of Sikkim In consequence to the alarm provoked by the acquittal of M‟Naghten, the M'Naghten Rules (1843) 4 St. Tr.(N.S.) 847 came to be formulated, based on the answers of a panel of Judges, given in June, 1843, to a series of hypothetical questions, on the topic of insanity, put to them by the House of Lords. The Learned Judges unanimously laid down that to establish a defence on the ground of insanity, it must be clearly proved that the accused;
i. laboured under a defect of reason ii. caused by a disease of the mind; so that either iii. he did not know the nature and quality of his acts, or that he did not know what he was doing was wrong. (ii) Section 84 of the IPC embodies the principles laid down
in M'Naghten Rules (supra) and the fundamental maxim of criminal law - actus non facit reum nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). It is by this test as distinguished from medical test, that the criminality of the act is to be determined. Consequently, before the Accused can be entitled to the benefit of Section 84 of the IPC, he must establish that at the time of committing the offence he was non composo mentis (not of a sound mind). The unsoundness of mind must be proved to be of a degree that by reason of such unsoundness, he was incapable of knowing the nature of the act or that he was doing what is either wrong or contrary to law.
(iii) In State of Madhya Pradesh vs. Ahmadulla12, it was affirmed that the burden of proof that the mental condition of the accused was at the crucial point of time, such as, is described by Sec.84, lay on the accused, who claimed the benefit of this exemption. Ayyangar, J., observed : "In this connection the Court below have failed to take into account the circumstances, in which the killing 12 AIR 1961 SC 998 Crl.A. No.40 of 2018 14 Trilochan Kapoor Sharma vs. State of Sikkim was compassed. The accused bore ill-will to Bismilla and the act was committed at dead of night when he would not be seen, the accused taking a torch with him, access to the house of the deceased being obtained by stealth, by scaling over a wall. Then again, there was the mood of exaltation which the accused exhibited after he had put her out of her life. It was crime committed not in a subsequent mood of insanity but one that was preceded by careful planning and exhibiting cool calculation in execution and directed against a person who was considered to be the enemy."
Thus, from a bare reading of the above extract is concludes that the burden of proof lies on the Appellant to establish that he was suffering from mental unsoundness at the time of the offence, in other words at the time when he committed the offence. It further obtains that where a crime is preceded by careful planning and calculation in execution, the Accused cannot be said to be labouring under a mental disease, of course the Court is to exercise its discretion analyzing the individual facts and circumstances of the case before it.
(iv) In Elavarasan vs. State13, the Supreme Court inter alia observed that while determining whether the Accused is entitled to the benefit of Section 84 of the Code, the Court has to consider the circumstances that preceded, attended or followed the crime. That, it is equally true that such circumstances must be established by credible evidence.
This ratio too lays down that the Appellant must by credible evidence establish his mental condition if he seeks the benefit of 13 AIR 2011 SC 2816 Crl.A. No.40 of 2018 15 Trilochan Kapoor Sharma vs. State of Sikkim Section 84 of the Indian Evidence Act, 1872, (hereinafter, the "Evidence Act").
(v) In Devidas Loka Rathod (supra) the Supreme Court considered the doctrine of burden of proof in the context of the plea of insanity and referred to Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat14, wherein it was inter alia observed as follows;
"(1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea, and the burden of proving that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Penal Code: the accused may rebut it by placing before the Court all the relevant evidence, oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rest upon a party of civil proceedings.
(3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of offence, including mens rea of the accused in that case the court would be entitled to acquit the accused on the ground that genuine burden of proof resting on the prosecution was not discharged." (emphasis supplied)
(vi) In Ratan Lal vs. State of M.P.15, it was observed that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the Accused.
(vii) That, having been noticed, every person is presumed to be sane unless proof to the contrary is shown, this is where Section 105 of the Evidence Act, kicks into place and casts a burden upon the offender. As held in Ratan Lal (supra), the unsoundness of mind should be at the time of commission of crime and is to be proved by the Accused. There is however a distinction between the nature of burden that lies on the accused under 14 AIR 1964 SC 1563 15 (1970) 3 SCC 533 Crl.A. No.40 of 2018 16 Trilochan Kapoor Sharma vs. State of Sikkim Section 105 of the Evidence Act, which calls upon him to furnish proof to the extent of preponderance of probability, while the Prosecution is mandated to prove the guilt of the Accused beyond reasonable doubt.
7. On the anvil of the principles that have been delineated hereinabove it is now essential to consider whether the Appellant has by preponderance of probability established that he was suffering from unsoundness of mind at the time of offence. The offence took place between January, 2012 and May, 2012, which in the first instance is an extended period of time revelatory of the fact that the Appellant had adequate time to plan and execute the offence. It was not an act committed on the spur of the moment whilst deprived of the power of self control and executed under grave and sudden provocation. It was executed over a period of four months with careful and meticulous planning enabling the Appellant to fraudulently reap financial benefits. The evidence on record reveals that although the I.O. had interacted with the Appellant during investigation, the Appellant did not inform the I.O. at any time, of his mental illness, either then or at the time of commission of the offence. The I.O. cannot be held responsible on this count in the absence of divulgence by the Appellant. This circumstance was not even put forth before the Court.
(i) To establish the mental unsoundness of the Appellant, Learned Senior Counsel would urge this Court to consider Exhibit X1 and Exhibit X2 (Attested copies of documents). Exhibit X1 colly in two pages bears the name of the Appellant indicating that he has been diagnosed with schizoaffective disorder. The document is devoid of a date. Exhibit X2 bears the date 14th March, 2017, which refers the Appellant to NIMHANS. Both the documents do Crl.A. No.40 of 2018 17 Trilochan Kapoor Sharma vs. State of Sikkim not pertain to the period of offence and thereby fail to fortify the Appellant‟s case of unsoundness of mind. The Prescriptions in Exhibit X2 are also of the years 2017 and 2018. As already discussed, the mental instability must be at the time of offence, not years after it commission. Bearing in mind the propensity of the Appellant to create false documents and the fact that the documents are not furnished or proved in terms of the provisions of the Indian Evidence Act, this Court disregards these documents. The documents are attested copies with no explanation of the fate of the originals.
(ii) Section 105 of the Evidence Act reads as follows;
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."
Illustration (a) reads as follows;
"(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.
The burden of proof is on A."
(iii) Mere verbal assertion of such an important issue i.e., mental unsoundness, sans an iota of documentary evidence, is not tenable in the eyes of law. It is unbelievable that the Appellant and his family could be remiss about maintaining the medical documents pertaining to his mental health. That apart, although D.W.2, his wife deposed that in the month of July, 2008 he was admitted to the STNM Hospital and then in 2011 he was referred to NIMHANS Hospital, she failed to buttress her evidence with documents. Under cross-examination, the fact that her husband regularly attended office, in a normal condition, prior to the Crl.A. No.40 of 2018 18 Trilochan Kapoor Sharma vs. State of Sikkim registration of the case and during that period he was promoted from Administrative Officer to Deputy Director, DESM&E, in which post he was working during the registration of the case, was elicited from her. The evidence of D.Ws 1 and 3 lend no succour whatsoever to the Appellant‟s plea of insanity. Hence, the Learned Trial Court correctly concluded that the benefit of Section 84 of the IPC could not be extended to the Appellant.
(iv) The Learned Senior Counsel for the Appellant sought to foist the responsibility on the Learned Trial Court for failing to evaluate the mental health of the Appellant, in terms of Section 328 of the IPC. This provision comes into play only when the Learned Judge has reason to believe that the person against whom the enquiry is being held is of unsound mind. Random orders cannot be issued when the Appellant exhibits no external signs of an unsound mind or fails to furnish documents before the Court with the plea of insanity. It is worth noting that nothing prevents the Accused from informing the Court or producing documents to put forth his case of mental instability.
(v) Now to address the question on the aspect of „Sanction‟, Learned Senior Counsel for the Appellant relied on Ashok Kumar Aggarwal (supra) and contended that the Prosecution must forward the entire records of the case to the sanctioning authority including materials and documents, which may tilt the balance in favour of the accused, on the basis of which, the competent authority may refuse sanction. It is relevant to notice that the Supreme Court in the ratio of Ashok Kumar Aggarwal (supra) observed as follows;
"7. The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority adequate material for such grant was made available to the Crl.A. No.40 of 2018 19 Trilochan Kapoor Sharma vs. State of Sikkim said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.
.................................................................................."
(emphasis supplied)
(vi) The ratio lays down that "adequate material" for granting sanction is to be forwarded and not any and every material which are with the Investigating Agency. On the bedrock of the decision cited hereinabove, when we examine the evidence of P.W.44, the then Additional Secretary, (Confidential), Home Department, Government of Sikkim, she has stated that she perused the entire Charge-Sheet including the relevant documents filed with the Charge-Sheet. The sanction Order comprises of six pages, revealing the consideration of all necessary details by P.W.44 and due application of mind, before obtaining approval of the higher authority to issue a sanction Order, in compliance of Section 197 of the Cr.P.C. Exhibit 161 is a comprehensive document, revealing that the witness was seized of the entire facts of the case which she noted in the said document. The sanction Order has been issued "By Order and in the name of the Governor"
the authority competent to appoint and remove the Appellant from Government service. Article 166 of the Constitution provides that;Crl.A. No.40 of 2018 20
Trilochan Kapoor Sharma vs. State of Sikkim "166. Conduct of business of the Government of a State.─(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on grounds that it is not an order or instrument made or executed by the Governor.
(3) ........................................................................."
(vii) The sanction Order was thus issued by the competent authority, duly communicated under the signature of P.W.44. The sanction Order suffers from no shortcomings. Relevantly, it may also be noticed that the cross-examination of P.W.44 did not question her competence to issue Exhibit 161. On this facet, apposite reference is made to the ratio in P.K. Pradhan vs. the State represented by the Central Bureau of Investigation 16, at his juncture wherein the Supreme Court held as follows;
"5. The legislative mandate engrafted in sub- section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a Court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation.16
AIR 2001 SC 2547 Crl.A. No.40 of 2018 21 Trilochan Kapoor Sharma vs. State of Sikkim ..............................................................................................
7. The view taken by Sulaiman, J. has been approved by the Privy Council in H.H.B. Gill v. The King, AIR 1948 PC 128 : (49 Cri LJ 503) where the Court laid down the law at page 133 (of AIR) : (at p.508 of Cri LJ) which runs thus:
"A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."
(Emphasis added) ..............................................................................................
9. In the case of Amrik Singh v. State of Pepsu, (1955) 1 SCR 1302 : (AIR 1955 SC 309 :
1955 Cri LJ 865) upon a detailed discussion, this Court was of the view that if the discharge of official duty and the act of the accused complained of are inseparable, sanction under Section 197 of the Code would be necessary. Venkatarama Ayyar, J., speaking for the Court observed at pages 1307-08 (of SCR) : (at p. 312 of AIR : at p.868 of Cri LJ) which runs thus:─ "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."
(Emphasis added) ..............................................................................................
13. In the case of Abdul Wahab Ansari v. State of Bihar, (2000) 8 SCC 500 : (2000 AIR SCW 3725 : AIR 2000 SC 3187 : 2000 Cri LJ 4631), while considering the scope of Section 197 of the Code, this Court observed at page 507 (of SCC) : (at p.3730 of AIR SCW : at p.3191 of AIR : at p.4635 of Cri LJ) which runs thus:─ "We have no hesitation to come to the conclusion that the appellant had been directed by the Sub-Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) apply to the facts of the present case."
14. In the case of K. Satwant Singh v. State of Punjab (1960) 2 SCR 89 : (AIR 1960 SC 266 :
1060 Cri LJ 410) a Constitution Bench of this Court observed that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. For instance, Crl.A. No.40 of 2018 22 Trilochan Kapoor Sharma vs. State of Sikkim acceptance of bribe, an offence punishable under Section 161 of the Penal Code is one of them and offence of cheating and abetment thereof is another. Likewise, another Constitution Bench in the case of Om Parkash Gupta v. State of U.P., 1957 SCR 423 : (AIR 1957 SC 458 : : 1957 Cri LJ 575) observed that a public servant committing criminal breach of trust does not normally act in his public capacity, as such no sanction is required for such an act." (emphasis supplied) The observations supra lucidly elucidate the circumstances under which the provision of Section 197 of the Cr.P.C. would be applicable. Sanction is required only when the official work and the offence are inextricably connected. Defalcation of Government funds is not a part of the works entrusted to the Appellant, which thereby eliminates the requirement of sanction under Section 197 of the Cr.P.C. for the present purposes.
(viii) So far as admission of guilt of the Appellant is considered, in Gokak Patel Volkart Ltd. (supra), the Supreme Court observed that where the Accused refunds the amount of money said to be defalcated, it is an admission of his guilt. The Appellant has by repayment personally of a sum of ₹ 66,834/- (Rupees sixty six thousand eight hundred and thirty four) only, to the State Treasury, unequivocally accepted his complicity in the offence.
(ix) The arguments regarding the apology letter being prepared under duress is belied by the corroborative evidence of P.Ws 7, 8, 16, 18 and 35 and does not merit prolix discussions. The question of the other officers being complicit along with the Appellant is a last resort to unburden himself of the crime and foist it on persons who had no hand in the offence. Had they been complicit there was no reason for the Office Superintendent, P.W.7, to report the matter and forward Exhibits 9 and 10 to the concerned Departments for verification. This argument is disregarded deserving no consideration.
Crl.A. No.40 of 2018 23
Trilochan Kapoor Sharma vs. State of Sikkim
(x) The evidence of the Handwriting Expert in my considered view was erroneously disregarded by the Trial Court. Indeed the opinion of such an Expert is not conclusive proof but it does assist in reaching a finding of guilt or otherwise of the Accused when considered in tandem with other evidence on record. On my examination of the evidence of P.W.42, and perusal of the documentary evidence, it appears that the admitted handwritings and signatures of the Appellant are in Exhibits 129, 130 to 132 and 150 to 155, marked by the P.W.42 as "A1 to A10". The specimen handwritings of the Appellant are in Exhibits 95, 134 to 139 marked by the Expert as "S1 to S47". The questioned handwritings and signatures have been marked by the Expert as "Q1 to Q22" in various Exhibits. The Expert opined that the person who wrote "A1 to A4" (admitted handwritings of the Appellant) also wrote "S1 to S47" and "Q1 to Q22", the reasons for reaching the finding was elucidated by him.
"A1 to A3" are found on Exhibits 150 to 152 and "A4" on Exhibit 153. These signatures are on Office Orders issued by the DESM&E the work place of the Appellant. These admitted signatures of the Appellant being „A‟ series supra, tally with the signatures „Q1‟ on Exhibit 39, which is the salary receipt of Priya Sharma, LDC for the month of February, 2012. „Q2‟ and „Q2/1‟, pay roll of Priya Sharma on Exhibit 40. Similarly, „Q6‟ on Exhibit 42 the salary receipt of Priya Sharma; „Q7‟ on Exhibit 43 the roll of pay of Priya Sharma, „Q8‟ on Exhibit 25 salary slip of Priya Sharma;
„Q10‟ on Exhibit 33 the salary slip of Ranjit Rai; are found to have been signed by the person who write "A1 to A4" i.e., the Appellant.
„Q13‟ the signature appearing on Exhibit 37, the salary receipt of Ranjit Rai is also said to correspond with "A1 to A4". „Q14‟ Crl.A. No.40 of 2018 24 Trilochan Kapoor Sharma vs. State of Sikkim signature on Exhibit 18, the joining Report of the Ranjit Rai is found to have been written by the person who wrote "A1 to A4".
Exhibit 17, the apology letter of the Appellant bearing his signature as „Q15‟ corresponds to the signature "A1 to A4". „Q17/1‟ and „Q17/2‟ the signatures appearing on Exhibit 57 the Proforma for details of family are said to have been signed by the person who signed as "A1 to A4". „Q 18‟ signature on Exhibit 20 the Office Order of Priya Sharma transferring her from North Sikkim to Gangtok is said correspond with the signatures "A1 to A4". „Q19‟ signature on Exhibit 21, the joining Report of Priya Sharma, was also signed by the person who signed "A1 to A6". „Q20‟ signature on Exhibit 22 the relieving Order of Priya Sharma is said to have been written by the person who signed "A1 to A4".
(xi) The evidence of P.W.42 with regard to the similarities of the signatures as elucidated in detail supra, remained undemolished, pointing to the involvement of the Appellant in the offence in view of the evidence of the other Prosecution Witnesses already discussed supra.
(xii) The argument pertaining to the illegality of seizures cannot be countenanced as all legal prescribed procedure have been followed. No specific ground of non-compliance of procedure has been laid before this Court.
8. In the end result, it obtains that the Appellant meticulously planned and executed the offences that he was Charged with, over an extended period of time, enabling him to wrongfully gain financially from the offence. This has been established by cogent and unwavering evidence, furnished by the Prosecution, aided by the act of the Appellant repaying the defalcated sum into the State Treasury. In light of the foregoing Crl.A. No.40 of 2018 25 Trilochan Kapoor Sharma vs. State of Sikkim detailed discussions, the impugned Judgment of conviction warrants no interference and is accordingly upheld.
9. On the question of Sentence, the plea of Learned Senior Counsel has been detailed in the foregoing discussions.
10. Having considered the submissions, the attention of Learned Senior Counsel for the Appellant is relevantly drawn to the observations of the Supreme Court in Mohd. Hasim vs. State of Uttar Pradesh and Others17 held as follows;
"19. The learned counsel would submit that the legislature has stipulated for imposition of sentence of imprisonment for a term which shall not be less than six months and the proviso only states that sentence can be reduced for a term of less than six months and, therefore, it has to be construed as minimum sentence. The said submission does not impress us in view of the authorities in Arvind Mohan Sinha [(1974) 4 SCC 222] and Ratan Lal Arora [(2004) 4 SCC 590]. We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the courts. In such cases, imposition of minimum sentence, be it imprisonment or fine, is mandatory and leaves no discretion to the court. However, sometimes the legislation prescribes a minimum sentence but grants discretion and the courts, for reasons to be recorded in writing, may award a lower sentence or not award a sentence of imprisonment. Such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the court. It means a quantum of punishment which cannot be reduced below the period fixed. If the sentence can be reduced to nil, then the statute does not prescribe a minimum sentence. A provision that gives discretion to the court not to award minimum sentence cannot be equated with a provision which prescribes minimum sentence. The two provisions, therefore, are not identical and have different implications, which should be recognised and accepted for the PO Act."
(i) In Harendra Nath Chakraborty vs. State of West Bengal18, the Hon‟ble Supreme Court in Paragraphs 27 and 28 held as follows;
"27. The appellant was dealing with an essential commodity like kerosene. If Parliament has provided for a minimum sentence, the same should ordinarily be imposed save and except some exceptional cases which may justify invocation of the proviso appended thereto.17
(2017) 2 SCC 198 18 (2009) 2 SCC 758 Crl.A. No.40 of 2018 26 Trilochan Kapoor Sharma vs. State of Sikkim
28. In India, we do not have any statutory sentencing policy as has been noticed by this Court in State of Punjab vs. Prem Sagar [(2008) 7 SCC 550].
Ordinarily, the legislative sentencing policy as laid down in some special Acts where the parliamentary intent has been expressed in unequivocal terms should be applied. Sentence of less than the minimum period prescribed by Parliament may be imposed only in exceptional cases. No such case has been made out herein."
Thus, the above observations lay down that the minimum Sentence prescribed by the statute has to be imposed on the guilty and cannot be reduced. Although the offences under the IPC under which the Appellant was convicted does not put forth a minimum Sentence of imprisonment however, Section 13(1)(d)(i) of the PC Act punishable under Section 13(2) of the same Act, specifically prescribes simple imprisonment for a period of not less than one year and fine thereof. Consequently, there can be no reduction of this Sentence to one month as prayed.
11. The Sentence of imprisonment and fine imposed by the Learned Trial Court, vide impugned Order on Sentence warrants no interference.
12. Appeal dismissed.
13. The Appellant shall appear before the Court of Learned Special Judge, Prevention of Corruption Act, 1988, Namchi, to undergo the Sentence imposed on him, in terms of the impugned Order on Sentence, dated 29-09-2018, by 05.00 p.m., today.
14. Let a copy of this Judgment along with the original records of the case be transmitted to the Learned Special Judge, Prevention of Corruption Act, 1988, Namchi, forthwith, for information and compliance.
( Meenakshi Madan Rai ) Judge 02-05-2023 Approved for reporting : Yes sdl