Dipen Bania Vs State of Assam

2. The present criminal appeal has been instituted assailing the judgment dated 18.02.2014 passed by the learned Special Judge, Assam, Guwahati, in Special Case No.

¶18

Page No.# 2/7

¶19

32/2012, convicting the appellant, herein, under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo Rigorous Imprisonment for 6 (six) months and to pay a fine of Rs.5,000/- (Rupees Five Thousand), along with another accused person.

¶20

3. The prosecution case in brief is that one Sarangapani Sarma, ACS, Executive Magistrate, on 17.07.1997, had lodged an FIR before the Officer-in-Charge, Mangaldoi Police Station, inter-alia, alleging, therein, that one Kartik Pathak, LDA and one Dipen Bania, Causal employee, both working in the office of the District Transport Office, Darrang, had demanded illegal gratification for issuing licence to one Mukut Sarma. It was further stated in the FIR that at the direction of the then Deputy Commissioner, Darrang, a trap was laid with the assistance of police and recovery was made from the pockets of the accused, Kartik Pathak of Rs.100/-, consisting of 10 nos. of Rs.10/- denomination notes and further, Rs.50/-, consisting of 5 nos. of Rs.10/- denomination notes from the appellant, herein. In the said FIR, the informant had mentioned the serial nos. of the notes recovered from the possession of the accused including that recovered from the appellant, herein.

¶21

On receipt of the said FIR, police registered Mangaldoi P.S. Case No. 198/1997 under Section 7 of Prevention of Corruption Act, 1988.

¶22

On conclusion of the investigation, police laid a charge-sheet against the accused persons including the appellant, herein, under Section 7 of the Prevention of Corruption Act, 1988.

¶23

The learned Trial Court upon considering the materials available on record framed a charge against the accused persons including the appellant, herein, under Section 7 of the Prevention of Corruption Act. The charge on being read over and explained to the accused persons, including the appellant, herein, they having pleaded not guilty and claimed to be tried, a trial ensued.

¶24

During the trial, the prosecution had examined 7 (seven) witnesses. The accused persons were, thereafter, examined under the provisions of Section 313 Cr.P.C.

¶25

The learned Trial Court, on conclusion of the trial, upon appreciating the evidences

¶26

Page No.# 3/7

¶27

coming on record, proceeded vide judgment dated 18.02.2014 to convict the accused including the appellant, herein, under the provisions of Section 7 of the Prevention of Corruption Act.

¶28

On their such conviction, the accused persons were directed to undergo Rigorous Imprisonment for 6 (six) months and to pay a fine of Rs.5,000/- each and in default, to undergo Simple Imprisonment for 1 (one) month.

¶29

Being aggrieved, the appellant, herein, has instituted the present appeal.

¶30

4. I have heard the learned counsel for the parties and also perused the materials available on record.

¶31

5. The learned Trial Court upon appreciating the evidences coming on record drew the following conclusions:-

¶32

“28. In the instant case as discussed above, it is found that the prosecution has proved the seizure of the currency notes which were given as illegal gratification from the possession of the accused persons. The evidence further discloses that 10 nos. of Rs.10/- currency notes were recovered from accused Kartik Pathak and 5 nos. of Rs.10/- currency notes were recovered from the possession of accused Dipen Bania. Record further reveals that among the recovered currency notes there were currency notes which bears the signatures of the then Dy. Commissioner Sri P. K. Tiwari. It itself proved that the recovered currency notes were not part of the remuneration which the accused persons are legally entitled. The only point remain to be proved is whether the accused persons have accepted the gratification as a motive or reward for doing or forbearing to do an official act or doing or forbearing to show any favour or disfavor in exercises of their official position or rendering or attempting to render for service of disservice to the complainant Sri Mukut Sarma.

¶33

In this context, the Ld. Special P.P. submitted that presumption can be drawn u/s 20 of PC Act against the accused public servants that they have accepted the illegal gratification as a motive or reward for issuing the driving license/transferring the

¶34

Page No.# 4/7

¶35

registration certificate or to expedite the works relating to the same.

¶36

For convenience section 20 of PC Act is reproduced below-

¶37

(1) Where, in any trial of an offence punishable u/s 7 or Section 11 or clause (a) or clause (b) of sub-Section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

¶38

(2) Where in any trial of an offence punishable u/s 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

¶39

(3) Notwithstanding anything contained in sub-section (1) and (2), the Court may decline to draw the presumption referred to in either or the said sub-section, if the gratification or thing aforesaid is in its opinion, if the gratification or thing aforesaid is in its opinion, so trivial that no interference or corruption may fairly be drawn.

¶40

The Ld. Defence counsels have argued that in view of sub clause 3 of section 20 presumption cannot be drawn against the accused persons as the amount recovered from the accused persons are too trivial. In this connection, the Ld. Defence counsel for accused relied on the following case law- A. Subir Vs. State of Kerela reported in (2009) 6 SCC 587. In the case relied by the Ld. Defence counsel the illegal gratification was of Rs.25/- only and it relates to an incident occurred on 24.04.1981. In our case the demand was made on 16.07.1997 and on 17.07.1997 and as appears from the evidence PW3 accused Kartik Pathak initially demanded Rs.300/- to Rs.400/- and accused Dipen Bania demanded Rs.200/- and the complainant has given illegal gratification of Rs.100/- to Kartik Pathak and Rs.50 to Dipen Bania in Rs.10/denominations and as such, the demand for illegal gratification by the present accused persons cannot be considered as too trivial.

¶41

I have taken into consideration the fact that presumption has always been rebuttable either by giving defence evidence or by elucidating some materials

¶42

Page No.# 5/7

¶43

contradiction from the mouth of the prosecution witnesses during cross-examination. In the instant case, the defence has not adduced any evidence. In the foregoing discussion and appreciation of evidence we have found that the defence could not elucidate any material contradictions from the mouth of the prosecution witnesses. In 313 Cr.P.C. statement one of the accused Dipen Bania stated that the seized money was forcefully entered into his pocket by the complainant (PW3). However, during cross examination of PW3 no such suggestion was given by the defence. The Hon’ble Supreme Court in C.I. Emden Vs. State of U.P. reported in AIR 1960 SC 548 and in another Dhanbantrai Bhalwantrai Desai Vs. State of Maharasthra reported in AIR (1964) SC 575 observed that the prosecution before asking the court to raise the presumption against an accused person is to prove that the accused person has received a gratification other than legal remuneration. If it is shown that the accused has received the stated amount and the said amount is not legal remuneration then the condition prescribed by the section is satisfied. In the instant case during the forgoing discussion we have found that the prosecution is vividly proved that both the accused persons have received illegal gratification other than legal remuneration. As such, in this case it is safe to draw a presumption against both the accused persons as per provisions of Section 20 of PC Act.

¶44

In view of the forgoing discussions I have no hesitation to hold that the prosecution has proved the guilt of the accused persons beyond all reasonable doubt and accordingly, they are convicted u/s 7 of the PC Act, 1988.”

¶45

6. On drawing the above conclusions and convicting the appellant, herein, under Section 7 of the Prevention of Corruption Act, the learned Trial Court sentenced them, as noticed, hereinabove.

¶46

7. This Court has examined the conclusions drawn by the learned Trial Court, in the light of the evidences coming on record and finds that the conclusions were drawn on a due and proper appreciation of the evidences coming on record. It is seen that every relevant aspect of the matter was duly considered by the learned Trial Court and there being no rebuttal of the presumption permissible to be drawn in the matter from the side of the appellant, herein, the conviction of the appellant, herein, under Section 7 of Prevention of Corruption Act, 1988 would not mandate any interference.

¶47

8. The learned counsel for the appellant has also not highlighted any infirmity in the conclusions drawn by the learned Trial Court in the matter. The appellant, herein, is found to have received illegal gratification and the demand thereof is also established. Accordingly, the conviction of the appellant, herein, under Section 7 of the Prevention of Corruption Act, 1988

¶48

Page No.# 6/7

¶49

stands affirmed.

¶50

9. Having drawn the above conclusions, this Court notices that the offence involved was committed by the appellant, herein, on 17.07.1997, more than 28 years have lapsed since the date of commission of the offence by the appellant, herein. The appellant, herein, was not found to have been involved in commission of a similar nature of offence, either prior to 17.07.1997 and/or thereafter. This Court also notices that the appellant, herein, has been litigating in the matter for the last 28 years initially before the learned Trial Court and presently, before this Court in the present appeal.

¶51

10. Considering the long lapse of time since the date of commission of the offence by the appellant, herein, and also noticing that the appellant, herein, was not involved in an offence of similar nature either prior to commission of the offence involved in the present proceeding and/or during the pendency of the present proceeding and also noticing the fact that the appellant, herein, has been litigating the matter initially before the learned Trial Court and presently, before this Court, this Court is of the considered view that the appellant, herein, is entitled to be extended with the benefits under the provisions of the Probation of Offenders Act, 1958. The said benefit being permissible to be extended by this Court in exercise of its appellate jurisdiction, this Court extends the benefit under the Act of 1958 to the appellant, herein.

¶52

11. Accordingly, for the reasons recorded, hereinabove, the appellant, herein, is given the benefit under the Act of 1958 and the sentence stands modified to the effect that instead of sending the appellant to jail, he should be given the benefit under the provisions of the Probation of Offenders Act, 1958.

¶53

12. This Court has only modified the sentencing with regard to imprisonment of the appellant, herein, and the fine as imposed by the learned Trial Court not having been interfered with, the appellant, herein, would be liable to deposit the fine amount.

¶54

13. In view of the above discussion, it is directed that the appellant, herein, will file two sureties to the tune of Rs.5,000/- (Rupees Five Thousand) along with a personal bond before the learned Special Judge, Assam and undertake to the effect that the appellant, herein, shall

¶55

Page No.# 7/7

¶56

maintain peace and good behaviour during the period of 1 (one) year from the date of filing of the bond. The aforesaid bond be filed by the appellant, herein, within a period of 2 (two) months from the date of this order, along with the deposit of the fine amount as imposed by the learned Trial Court.

¶57

14. With the above observations and directions, the present criminal appeal stands disposed of.

¶58

15. Registry to send down the records to the learned Trial Court along with a copy of this order for information.

¶59

JUDGE

¶60

Comparing Assistant

Dipen Bania v. State of Assam

Case brief

What is this about?

What did the court decide?

Dipen Bania v. State of Assam

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sanjib Ghosh @ Piklo Vs the State of Assam

Thaken Das Vs the State of Assam

Joyguru Barman and 2 Ors. Vs the Union of India

Prafulla Bora @ Gauri Bhusan Bora Vs the State of Assam and Anr.

Alauddin Ahmed and Anr. Vs the State of Assam

Puniram Das and 4 Ors. Vs the State of Assam