Bombay High Court
Dattatraya Krishnaji Joshi vs State Of Maharashtra on 11 January, 1991
Equivalent citations: 1991(2)BOMCR49, (1991)93BOMLR545, 1991CRILJ2097
JUDGMENT
1. The appellant - an Executive Engineer in the Irrigation Department - takes exception to his conviction under section 161 of the I.P.C. as also under section 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947. On the first count he was sentenced to rigorous imprisonment for one year and on the second count to rigorous imprisonment for one year as also a fine of Rs. 500/- and in default of payment of fine further rigorous imprisonment for three months. The substantive sentences of imprisonment were directed to run concurrently.
2. The appellant was the Executive Engineer in charge of Division No. 7 of the Kukadi Irrigation Project. His headquarters were at Shrigonda, District Ahmednagar. Four buildings, each consisting of four residential blocks were to be constructed for the employees at the said project. Tenders were, therefore, called. One Ashok Naik, a young contractor also submitted his tender for the said works. His tender for construction, at a cost of Rs. 2,93,635/- was accepted on 2-11-1979. Along with the tender he had deposited the earnest money of Rs. 3000/- on 18-10-1979. He was also required to deposit Rs. 14000/- towards the price of the steel and cement which was to be provided to him for the purposes of these works as government quota. He had deposited Rs. 7350/- in cash and the balance due from him was to be appropriated from his running bills with interest at 5% per annum and also a deduction of income-tax at source at 2% per annum. Upon acceptance of his tender and compliance with these requirements, the said Ashok Naik commenced the construction work. The supervision over this work was being done by a Deputy Engineer by name Shri Gauda and Overseer Shri Bhide. The contractor's grievance was that measurements of the work done by him from time to time were not taken correctly by these persons. On one occasion when the measurements were so taken incorrectly, he had taken objection to the same, he had endorsed his objection in writing on the said measurement book. However, in view of the threat by the said Shri Gauda that there would be more objections taken to his running bills, or that he would be subjected to fine, etc., unless he agreed to the measurements, the said contractor Ashok Naik wilted under the threats and then even scored out the objection so endorsed by him and made a fresh endorsement of acceptance of these measurements. Ashok Naik also had occasion to complain about the supply of steel and cement to him being irregular, about less quantity of cement being actually supplied and the larger quantity having been shown as supplied to and exhausted by him. There being a shortage of diesel in those days, he had sought for supply of diesel through government quota which was also denied to him. So also his request that if diesel could not be supplied, he should be given the assistance of government vehicle in the matter of transporting material to the work site. There were thus several complaints which Ashok Naik appears to have faced and discouragingly enough since this was admittedly the first contract which was awarded to him. Ashok Naik had been thus unable to carry out the work according to the plan. The work did not proceed at the pace expected of him and he lagged behind and had also been subjected to fine from time to time. However, he was so frustrated, for want of proper assistance given to him, for want of consideration shown to him in his execution of the said works, that he eventually decided to give up the contract.
3. Accordingly, he approached the accused Executive Engineer on 20-8-1980 and submitted that he did not want to continue the work any further and that his bills for the work so done, up to that time should be finally settled. Apparently the delays committed by the said contractor Ashok Naik, the deficiency left by him in the said work, the extent of work done by him, etc., then was accepted under the terms and conditions, all tended to prove his case under the penal clauses 3-B and 3-C of the terms and conditions pertaining to the contract. The accused then suggested to the contractor that it was within his powers however to take his case within the four corners of the less harsh provision of clause 3-A of the terms and conditions. In that case the loss to be sustained by the contractor would be considerably reduced as the accused pointed out to him. But, for doing so, the accused said that he would have to be given Rs. 1000/-. Pressed as he was, in a predicament placed as he was, the contractor Ashok Naik had to seek the easier way out of the contract in question. He, therefore, agreed to pay Rs. 1000/- to the accused at his house on Tuesday, the 2nd September 1980.
4. The contractor then reported the matter to the Dy.S.P. Shri Patwardhan of the Anti-Corruption Bureau at Nasik. His complaint was recorded as per Exhibit 17 on 1-9-1980, in the presence of two panchas. A trap was thereafter arranged to be laid. The manner in which the trap was to be laid and carried out was explained to Ashok Naik as the complainant and two panchas, one Shri Awadhal and Chole. A demonstration of the use of anthracene powder with which the money to be paid to the accused would be smeared, how it would have to be handled by the complainant, the matter in which it would have to be handed over by him to the accused and under what circumstances was all explained to these persons. Upon the acceptance of the said amount by the accused, after a demand in that behalf was first made by him, a particular signal was to be made to the raiding party which would be waiting outside in proper hiding. Thereafter the raiding party would rush to the place where the accused would accept the amount and further proceedings would be carried out. The complainant was specifically informed that the amount in question was to be paid to the accused only if and after a demand for the same was made by him and not otherwise.
5. Accordingly, the contractor Ashok Naik as the complainant and Chole P.W. 2 as the Panch witness went to the house of the accused and met him with a view to make the payment. The accused however directed them to meet him at his office after some 10 or 15 minutes. Accordingly, Ashok Naik and Chole went to the office of the accused. The accused was already there. The complainant sent a slip of paper writing his name on it as a visitor who wanted to meet. The accused through his Peon Borade called Ashok Naik and Chole into his chamber whereafter they went in. To put the accused at ease, the complainant Ashok Naik introduced Chole to the accused as being his brother-in-law. The accused thereupon inquired from Ashok Naik as to what had happened to his work. The complainant contractor replied that he had arrived at the accused's office after having made full arrangement in that behalf.
6. The accused then advised the complainant why it was in his interest to leave and give up the contract taken by him for several reasons including that the cost of material had by then gone up very high, that up to that point of time the complainant had not been in a position to complete even 25% of the entire work and such others. The accused represented to him that he would be in a position to finalise the work done until that time by the contractor under Clause 3-A and also warned him that the complainant would stand to lose much more if the finalisation was done under Clauses 3-B and 3-C. He advised the complainant to make an application accordingly. He also jotted down on the same slip of paper which the complainant had sent him as a visitor, to got down the points on which the complainant was to lay emphasis while praying for finalisation of his bill. The accused handed over this slip to the complainant and the latter handed it over to the Panch Chole. Thereafter the complainant stood up from the chair in which he was till then sitting. With his right hand he took out from the right side pocket of his trouser - the marked currency notes and handed them over to the accused. The accused took them in his left hand and then put them in his left side pocket of the pant. The work of writing down of an application as suggested by the accused was thereafter completed. The complainant signed the same and handed over the same to the accused and then the accused called his Accountant one Shri Akadkar. He handed over that application to Shri Akadkar. Shri Akadkar read over that application and returned it to the accused making some suggestions in accordance with which, Chole as the scriber of the application made further additions. That having been done, the application was kept on the table of the accused who asked the complainant to go away. On going out of the Chamber of the accused, the complainant made the prearranged signal whereupon Dy.S.P. Shri Patwardhan, the other panch Awadhal and other members of his staff rushed to the spot. The complainant was asked to wait outside the office while Shri Patwardhan and the panchas Chole and Awadhal and others entered the chamber of the accused. After explaining that he was the Dy.S.P. in charge of the Anti-Corruption Branch, Shri Patwardhan asked the accused to remain still in his place and proceeded with the work. The amount of Rs. 500/- was recovered in the form of marked currency notes from the person of the accused. A panchanama of all the instructions and demonstrations were made before starting for the trap raid from the office at Nasik and thereafter a second panchanama, i.e. the post trap panchanama was also drawn up and the Dy.S.P. then filed his own complaint in the Court of the J.M.F.C. at Nasik. On this complaint, offence was registered under section 161 of the I.P.C. and under section 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947. Further investigation was also taken up by the Dy.S.P. Sanction to prosecute the accused for the above stated offence was also appropriately obtained.
7. To the charge framed under two of the sections above, the accused pleaded not guilty and the defence which he took was rather simple. He admitted that on 2-9-1980 in his own office at about 3-30 p.m. or so he has received a sum of Rs. 500/- from the contractor Ashok Naik. He also did not dispute the fact that the currency notes had been treated with anthracene powder and were therefore marked ones. However, his contention was that the said amount was not received by him by way of illegal gratification for bringing the case beneficially to the contractor Ashok Naik, under the provisions of the terms of R. 3-A rather than onerous terms and conditions of rules 3-B and 3-C. That was never the purpose for which he had demanded any money from the contractor nor on 2-9-1980 had he received the same for that purpose. According to him, when the work of the irrigation project at Kukadi commenced an old dilapidated Shambhu Mahadeo Temple came to be discovered. As would be the sentiments of any devout Hindu, the temple was not to be demolished. On the other hand, there was a move to renovate it. A committee called "Shambhu Mahadev Jirnodhhar Samiti" was set up for the purpose with the accused Executive Engineer as the Chairman of that committee, one Shri Kulkarni as the Treasurer, the Deputy Engineer Shri Gaude as the Secretary and one Shri Ramchandra Machale, Godown Keeper as being one of the other six members of the committee. Some three or four months before 20-8-1980 on which date the contractor Ashok Naik admittedly met him in connection with the termination of the contract and the finalisation of his bill, he had promised to make a donation of Rs. 500/- to the said Samiti. In as much as the finalisation of the contractor's bill was thus settled or agreed to be settled on 2-9-1980 and as much as the contractor had agreed to make this donation at the time of the final settlement of his bill, the accused contended that he thought that the amount of Rs. 500/- which was being handed over to him by the contractor at that time was the said amount by way of the complainant's donation to the Samiti. In fact, the accused further submitted, he had promptly reacted to the situation in the manner of immediately sending his Peon to call Shri Machale as the member of the Samiti and was to instruct Machale to call the Treasurer Shri Kulkarni with the receipt book and then to pass a proper receipt in favour of the contractor Ashok Naik, But before Machale had left his office, the Dy.S.P. Shri Patwardhan and others had entered his Chamber and therefore he could not immediately send for Shri Kulkarni for preparing an appropriate receipt in favour of the contractor, for the donation of Rs. 500/- to the Samiti. It is on these facts that the accused pleaded not guilty and wanted to be tried.
8. The learned Additional Sessions Judge who tried the case, considering the evidence of the contractor Ashok Naik as the initial complainant PW-1, the panch witness to the trap P.W. 2 Chole as also the Dy.S.P. Shri Patwardhan and others and having further considered the defence evidence led by the accused by examining himself as a witness for defence, as also the testimony of Machale as the member of the said Samiti, came to the conclusion that it was specifically for the purpose of benefiting the contractor by settling his bill under R. 3-A rather than rules 3-B and 3-C, that the accused had demanded the illegal gratification of Rs. 1000/- from the contractor on 20-8-1980 and had towards that illegal gratification received Rs. 500/- from him on 2-9-1980 at his own office. The trial Court thus held the offences u/S. 161 of the Indian Penal Code as also under section 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947 as duly established against the accused. He was accordingly convicted and sentenced.
9. At the hearing of this appeal, the point which therefore arises for decision is substantively whether the accused had in the first place made any demand for illegal gratification for exercise of his powers as an Executive Engineer in favour of the complainant contractor Ashok Naik for benefiting him or for saving him from being subjected to sever loss by so arranging matters i.e. reports pertaining to his work that the finalisation of his bill would be possible under Clause 3A and would not be susceptible to the more perilous effects of clauses 3-B and 3-C. The trial Court, therefore, held that in pursuance of this demand of illegal gratification, the accused did receive Rs. 500/- from the said contractor on 2-9-1980.
10. The point which, therefore, stands canvassed very strongly by the learned counsel Smt. Agarwal for the appellant is that the receipt of the amount of Rs. 5001/- in the form of treated currency notes of Rs. 500/-, being an admitted fact, the prosecution has still failed to prove that the appellant-accused had received that amount in pursuance of and only upon a demand in that behalf having in the first instance been made by him upon the contractor Ashok Naik. It is argued and quite rightly that unless the fact of such a demand is in the first instance proved, the receipt of the amount of Rs. 500/- by the appellant cannot be brought within the four corners of the mischief of S. 161 of the Indian Penal Code or for that matter under section 5(1)(d) of the Prevention of Corruption Act. Before turning to this, as one of the vital considerations involved, let me place on record the context to this incident as it started sometime in March 1980 as may be seen from the several documents as have been placed on record. I have already observed that there were difficulties and stumbling blocks in the way of the contractor's business to complete the work for which the contract was granted to him. It was one of his grievances that the Deputy Engineer Shri Gauda and the Overseer Shri Bhide who had been supervising his work were not making proper record of the measurements of the work which was done by him from time to time, that the measurements were being recorded otherwise than what he had actually done. This fact is not disputed by the appellant. The contractor also made grievance that he had been eventually forced to accept the measurements as recorded by these officials and was not allowed to make a grievance that these were being deliberately shown as less. There is on record the measurement book at page No. 317264 in which an endorsement of the measurement has been made. Against this measurement, an objection taken by the accused is also endorsed. That objection is seen to have been subsequently scored out and the measurement accepted and in terms of it the signature made by the contractor Ashok Naik. This, he explains was under pressure that unless he accepted the measurements recorded as correct, he would be in trouble and would have to face losses. The chagrin which the contractor thus experienced would appear to have been rather obvious and was also a matter of knowledge on the part of the accused as the superior officer, the Executive Engineer in charge of the project. The appellant was fully aware of this and other grievances made by the contractor in regard to the short supply of cement and steel while the full quota was being recorded as supplied to him and as exhausted, he was also aware of the grievances made by the contractor in regard to the non-availability of the Government transport and availability of adequate supply of diesel for his business. The contractor had applied for a permit for supply of diesel by his application dated 18-3-1980. In view of the difficulties that had occurred, and in view of the time limit for completing the construction work coming to the door step, he had by his letter dated 28-3-1980 also applied to the Executive Engineer for extension of time for completion of the work. Then in May 1980 as per application Exh. 13 the complainant as also another contractor by name Lokhande had sought a revocation of the contract in view of the spiralling rise in the prices of bricks, wood, mozaic tiles, cement and such other materials required for the construction of the residential quarters. An application for extension of the period to complete the work had again been made in May 1980 as per application Exhibit 14. He had been making complaints about the delay in preparation and making of his running bills. He made a grievance in this behalf also by his letter dated 21-3-1980 seeking an early payment of his bills and then as late as on 25-8-1980 he made a complaint as per his letter Exh. 16 about the short supply of cement and the false entries regarding the quantity supplied to him, made in the relevant records. He also reiterated his grievance about the non-payment of bills in time, the false accounting, short measurements and doubling of rates. These facts and circumstances, in my opinion, have made it clear that the contractor had found it impossible to go on with the work in question and to complete it. A perusal of the record, in particular his complaint as also his deposition before the Court, makes it clear that in fact he was finding it difficult to pay off various loans which he had taken from time to time from different persons. It was thus finding himself in troubles, neck deep, that he came to the conclusion that it would be not easy for him to continue the work further, rather it would be beneficial to terminate it for once and for all.
11. It is with this in view, that the contractor approached the accused, Executive Engineer on 20-8-1980. He has stated that when he raised the question of finalisation of bill and giving up of the contract and finalisation of the bills, he was told that unless his case could be brought under Clause 3-A he would stand to lose very substatially and heavily and that in the exercise of his own powers the accused would be in a position to help him by bringing his case under Clause 3-A as the less disadvantageous clause. Therefore, the complainant agreed that he would, as desired by the accused Executive Engineer, pay Rs. 1000/- to him. A part payment of Rs. 500/- was agreed to be made on 2-9-1980.
12. It is against this evidence that the plea that appellant has received undisputedly the amount of Rs. 500/- as an office bearer of the said Samiti has to be considered. The evidence makes it amply clear that the contractor was indeed so short of funds, so pressed for money, so deep down in debts, that he was not and could not have been at that point of time, in a mood to make any donation whatsoever to the temple. It is also material to note that the question of making any donation would only arise 'at the time when the final bill would actually be made,' which according to me, must mean the payment as per the final bill, which was only at that stage of finalisation, that the contractor might make donation. On the other hand, in the written statement at Exhibit 36 and even in his deposition as DW-1, the appellant very clearly admits that even on 20-8-1980 what was agreed was that the donation of Rs. 500/- would be made "at the time of making the final bill" which means making the payment under the final bill. In the circumstances the contention that the accused had on 20-8-1980 proposed himself to make a donation of Rs. 500/- to the Committee does not carry any conviction.
13. The next submission of the learned counsel Smt. Agarwal is that the prosecution has failed to prove that on 2-9-1980, when the contractor Ashok Naik accompanied by the panch witness Chole went to the chamber of the accused, no demand as such had been made on the contractor for Rs. 500/-. This also does not appear to me as a correct submission upon the facts as they stand. The complainant has deposed that since at the meeting on 20-8-1980 the accused had demanded and he agreed to pay Rs. 1000/- and had agreed to pay Rs. 500/- towards that amount on Tuesday, the 2-9-1980, on his going to the office of the accused, the latter had specifically inquired from him "as to what had happened to his work". Specific wording in this behalf from the vernacular of the deposition would be useful to reproduce here :
The witness states that thereupon he replied to the accused and assured him that as agreed on the previous Thursday he had arrived there with all the arrangements i.e. with full preparation. It needs to be noted that this version of Ashok Naik apart from standing undislodged and unrebutted on cross-examination, also stands fully corroborated by the panch witness Chole PW-2. The short question which, therefore, according to Smt. Agarwal, learned Counsel for the appellant, arises is whether or not the enquiry in the words "as to what had happened to his work" constitutes or not a demand made by the accused upon the contractor Ashok Naik for payment of the money. In my opinion, in the context of what happened at the meeting between the accused and this contractor on 20-8-1980, viz. the accused agreeing to bring the case of the contractor, for finalisation of his bills, under Clause 3-A, he had demanded a payment of Rs. 1000/- in the whole and a part payment of Rs. 500/- on Tuesday, the 2nd September 1980. It is for this reason and in this context that in my opinion, the words as have been used by the accused as per the deposition of Ashok Naik and the panch witness Chole must necessarily constitute a demand made by the accused and that the payment of Rs. 500/- was thereafter and only thereafter made to the accused. It was only thereafter that it was also accepted by him. The argument is that the demand should have been proved as made in more plain, more specific and may be even crude words to the effect :
"Have you brought the amount. Give it to me."
I do not think that the demand was required to be proved to be made in such a plain or crude or tersely clear words. The conversation between the parties took place in Marathi as their mother tongue and which is a language so sophisticated and so pithy in meaning that the words used in the language for the conveying of the demand for Rs. 500/- was more than amply so conveyed by the words which the accused is proved to have actually uttered when the contractor accompanied by Chole entered his office and when the two of them were duly seated in the chairs by the (side of the ?) accused. I have very specifically sought to request the learned Counsel to point out whether there are any precedents in support of the contention advanced by her that the demand is to be proved to have been made in the absolutely clear and specific words. There appears to be no such precedent and what has to be appreciated is that the making of the demand has to be a matter of understanding not between the accused and any third person but he person who demands and the person who proceeds to pay or who is to pay.
14. That this amount was not accepted by the appellant by way of any donation as such is further clear by the fact that as soon as it was handed over to him by the contractor, he pocketed the same. The evidence on record shows that until that time the accused himself had never received even a naya paisa by way of donation from any person in the cause of the Samiti's venture. He did not have any receipt book with him. There is a treasurer appointed for receipt of donations and passing of receipts. He was the Deputy Engineer Gauda. If the amounts were to have been received by the accused by way of a donation as he claimed to have thought it to be, his reaction would not have been, according to me, to pocket the amount but to keep the amount on his table and immediately send for the concerned person to receive the same and to pass a proper receipt. The learned counsel Smt. Agarwal therefore also argues that even this step would appear to have been taken by the accused when he contends, deposes and as is also deposed to by DW-2 Machale, that upon receiving this amount he had sent a Peon to call Mr. Machale and the object was therefore to ask Mr. Machale to call Mr. Kulkarni with the necessary receipt book. In the first place if at the time of receiving the amount from the contractor the thought in the mind of the accused was to presume that he was receiving the amount by way of donation, then on the admitted premise that the Dy. S.P. Shri Patwardhan and the panch and other staff had rushed into the room even before Machale whom he had called in his room had left, he would have immediately disclosed when he would have thought or realised that it was a trap, that he had received this amount only by way of a donation or had thought it to be so. The accused does not say that while handing over the amount to him the contractor had said that it was by way of a donation. Even his plea in the defence is that he thought it to be a donation. Apart from the fact that such a prompt disclosure as to the nature of the amount was not made to the Dy.S.P. the evidence now given in defence by the accused himself and the DW-2 Machale himself is also a clear case of an afterthought. It is an afterthought in fact and to the extent that the accused says that he had asked Machale to be called for the purpose of asking him to call Shri Kulkarni with the receipt book. Even Machale has deposed that the accused told him to call Shri Kulkarni and also to call the receipt book promptly and that he had not come to know as to why then the accused had said so to him. On cross-examination the defence witness has admitted :-
"It is true that for the first time today I have stated that Joshi Saheb told me to call Kulkarni and also to call the receipt book from him."
Virtually the same is the admission which the appellant has himself made when under cross-examination by the prosecutor for the State. He also admits :
"It is true that for the first time today I have stated that I had told Machale that Naik had paid Rs. 500/- to Mahadeo Jirnodhar Samiti."
In the circumstances, it is also difficult to accept learned Counsel's submission that the accused had, reasonably only, thought the amount of Rs. 500/- which was paid to and received by him on 2-9-1990 was being paid to him by way of a donation to the said Samiti. It therefore clearly constitutes the receipt of an amount by way of illegal gratification, the gratification having been demanded by the accused in order to bring the case of the contractor beneficial to the latter under the provisions of clause 3-A of the Rules pertaining to the settlement of bills and for avoiding a greater financial loss by bringing it under clauses 3-B and 3-C. Even so, the submission of the learned Counsel is that it is only a reasonably plausible explanation which is required to be put up for rebutting the presumption which arises against him under section 4 of the Prevention of Corruption Act. It is proved that he had received the amount in question and in this case the amount of Rs. 500/- in the form of currency notes treates with anthracene powder and which was given to the contractor for being paid to the accused by way of a bribe for showing favour. Smt. Agarwal has relied upon two decisions of this Court in Chiman Keshavdas Bhatis v. State of Maharashtra 1988 Mah LJ 913 and Ashok Sadashiv Astikar v. State of Maharashtra, 1988 Mah LJ 936 both decided by one and the same Judge of this Court. The ratio of these two decisions, following a long line of decisions of the Supreme Court is that in a criminal case the burden of proof upon an accused is not the same as that on the prosecution. The prosecution must establish its case beyond a shadow of doubt. On the other had the accused has the burden to make out a reasonably probable case. That is the nature of the explanation which he need offer. Quite clearly, what upon the given facts and circumstances of a case constitutes an explanation reasonable and probable or suffices to create a reasonable doubt about the veracity of the prosecution must always be appreciated as being a question of fact. It has to be resolved upon the facts peculiar to every case and in the present case I find that there is no reason whatsoever to doubt the truthfulness of the evidence of the contractor Ashok Naik that he was forced to pay a bribe to avoid severe financial consequences and crisis which he otherwise stood to face and suffer by reason of his inability to complete the construction work under the contract within the prescribed time and within the estimate of his own expenditure thereof. The circumstances that there was admittedly a meeting of the contractor and the Executive Engineer on 2-9-1980, that the subject of the finalisation of his bill and leaving the work was discussed at that time, that the difficulties in the matter of settling and finalising the bill under the one or the other provision of Clause 3 was also discussed, that the danger of the bill being finalised under clauses 3-B and 3-C was also something of which the accused apprised him, are facts which are all too clear to reject the evidence of the contractor that he had therefore wilted under the threat from impending evil consequences and had therefore decided to salvage his position as much as possible by offering illegal gratification to the accused upon the latter's demand. For these reasons, therefore, I have no doubt that the commission of offence under Section 161 of the I.P.C. and under Section 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947 was clearly brought home against the appellant accused. His conviction thereunder would have therefore to be upheld and confirmed.
15. On the question of sentence however, the learned Counsel had been much more persuasive and earnest enough to the Court. She pointed out that the appellant having held the post of an Executive Engineer, having served in the Government apparently with good reputation until the present occurrence, has already completed his 58 years of age and would have stood to retire honourably on the 25th March 1988. It is only unfortunate that he came to be dismissed and not only dismissed but forfeited all his rights to the pension, to the amount of gratuity and other benefits. He is a person aged down much more, physically and mentally, during these years awaiting trial and awaiting decision of the appeal and has therefore suffered more than considerably already. In the circumstances, Smt. Agarwal submits that the appellant, upon affirmation of his conviction should be given justice at least by sentencing him only to the payment of fine and not to any imprisonment. The language of the penal provisions of S. 5(2) prevents me from adopting this view in as much as there is no choice left to the Court of awarding either the sencence of imprisonment or a fine and thus exercising discretion of awarding only a sentence of fine and no imprisonment. The language is in my opinion quite clear.
"5. (2) 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 :
Provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year."
Therefore, the sentence of fine is one which is imposable at the discretion of the Court and the imprisonment of minimum of one year and further reducible by the Court for good reasons to be recorded. It is not that the award of the sentence of imprisonment can be avoided out right. In this behalf, Smt. Agarwal however, relied on an unreported decision of this Court in Vasant Krishnarao Wani v. State of Maharashtra in Criminal Appeal No. 277 of 1984 decided on 16th April 1987. In that case, the appellant was sentenced to rigorous imprisonment for eighteen months and a fine of Rs. 1,000/-. Taking various circumstances into consideration, the learned single Judge of this Court was of the view that the ends of justice would be met if the substantive sentence of imprisonment of eighteen months is set aside and only a fine of Rs. 1,000/- was confirmed. I am afraid, this decision does not contain any discussion as to whether the provisions of S. 5(2) of the Act at all permit the award of sentence of fine simpliciter and permits or gives any discretion to the Judge not to award any sentence of imprisonment whatsoever. To my mind, the grant of sentence of imprisonment for any term as may be considered reasonable and proper in the circumstances of the case is not only inevitable but compulsory under the Act. It is difficult to accept the view irrespective of the unreported decision cited before me that in such a case it will do to sentence the accused person only to the payment of fine and not to award any sentence of imprisonment. Having regard to the submissions otherwise made, I am of the view that this would be a case fit enough to grant a token sentence of imprisonment, the appellant-accused having already suffered over the years considerable mental torture and trauma apart from the loss of service and apart from loss of several retiral benefits to which he would have otherwise been entitled. While maintaining the conviction of the appellant, I, therefore, direct that the sentence be altered. The substantive sentence of imprisonment of one year under Section 161 of the I.P.C. as also the substantive sentence of imprisonment for one year under Section 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act, 1947 is hereby reduced to imprisonment till the rising of the Court. The amount of fine of Rs. 500/- imposed for the offence under section 5(1)(d) read with S. 5(2) of the Act is however, enhanced to Rs. 2,000/-, in default of the payment of this amount, the appellant shall undergo rigorous imprisonment for a period of three months. The appellant prays for and is granted time till 15th of March 1991 to pay the amount of fine. His Bail Bonds shall stand cancelled thereafter.
16. Order accordingly.