# B. G. GOSWAMI v. DELHI ADMINISTRATION

- **Citation:** [1974] 1 S.C.R. 222
- **Court:** Supreme Court of India
- **Decided:** 1973-05-04
- **Case number:** Criminal Appeal No. 23 of 1970
- **Bench:** K. K Mathew, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-g-goswami-v-delhi-administration-6663
- **Pages:** 6

## Headnote

P1·erc11tion of Corruption Act (2 of 1947), Ss. 4(1), 5(1) a1t:l (2)-Statu.
tory presu111plio11, if applicable.
Practicc-5entence-Principles for imposing sentence of ilnpriso1une1u,
(a) \Vith respect to the offence under s. 5(1) (d) of the Prevention of
Corruption Act, 1947, the statutory presumption under s. 4(1) of the A-;t,
against the accused, is 'not available.
R. C. 1'.fellla v. State of Punjab, A.I.R. 1971 S.C. 1420, referred to.
{b) Under s. 5{1){d) read \vith s. 5(2), the minimum sentence prescribed
is one year RI and a sentence for a lesser period can be imposed for special .
reasons to be recorded in writing by the Court.
A·
B
c
In the present case, the appellant was convicted for offences under Ss. 5 ( 1) {d)
and 5(2) of the Prevention of Corruption Act and under s. "161. I.P.C.
Sentence of imprisonment and fine were imposed for each of the offe.nces, and
the sentences of imprisonn1ent were directed to run concurrently.
The High
D
Court in appeal. reduced the sentence to 1 year R.I. and maintained the fin~.
The lli~h Court and the trial Court relied on the statutory presun1ption.
In appeal to this Court,
·
· HELD : (i) The offence was committed 7 years ago and criminal proceedings
lasting for such a Jong time would by itself mean considerable harassn1cnt for
an accused person.
Therefore, it would not be fair or just to further prolong
the proceedings by remanding the case to the trial Court. to examine the evidence
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afresh after ignoring the 3tatutory presumption. f226E~F]
(2) This Court also docs not exafnine the evidence for itself in appeals.
under Art. 136 except when interests of justice so demand.
In the i!'.'stant case,
the same facts constitute the offence under s. 161. I.P.C. to which the statutory
presumption under s. 4( 1) of the Prevention of Corruption Act is ad1nittedly
applicable.
There is thus no question of grave. failure of justice or of a
~uilty person escaping justice. if this Court does not
exan1ine
the
evidence
tor determining the guilt of the ·appellant under Ss. 5(1) (d) and 5(2) of the'
F
Act.
f226B-C, F-Gl
(3) The question of sentence is always a difficult question requiring a
proper adjustment of the reforn1atory, deterrent and punitive aspects of punishment.
In the instant case. considering the facts .that the appellant is going to
lose his iob and has to earn a Jiving for himself and members of his family,
the ends of justice· would be met by imposing a . fine instead of sending him
back to jail (the appe11ant was on bail) after 7 years of agony and harassment
of criminal proceedings.
[227 A-B, D-E~
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## Text

222
B. G. GOSWAMI
v.
DELHI ADMINISTRATION
May 4, 1973
[K. K MATHEW AND I. D. DUA, JJ.J
P1·erc11tion of Corruption Act (2 of 1947), Ss. 4(1), 5(1) a1t:l (2)-Statu.
tory presu111plio11, if applicable.
Practicc-5entence-Principles for imposing sentence of ilnpriso1une1u,
(a) \Vith respect to the offence under s. 5(1) (d) of the Prevention of
Corruption Act, 1947, the statutory presumption under s. 4(1) of the A-;t,
against the accused, is 'not available.
R. C. 1'.fellla v. State of Punjab, A.I.R. 1971 S.C. 1420, referred to.
{b) Under s. 5{1){d) read \vith s. 5(2), the minimum sentence prescribed
is one year RI and a sentence for a lesser period can be imposed for special .
reasons to be recorded in writing by the Court.
A·
B
c
In the present case, the appellant was convicted for offences under Ss. 5 ( 1) {d)
and 5(2) of the Prevention of Corruption Act and under s. "161. I.P.C.
Sentence of imprisonment and fine were imposed for each of the offe.nces, and
the sentences of imprisonn1ent were directed to run concurrently.
The High
D
Court in appeal. reduced the sentence to 1 year R.I. and maintained the fin~.
The lli~h Court and the trial Court relied on the statutory presun1ption.
In appeal to this Court,
·
· HELD : (i) The offence was committed 7 years ago and criminal proceedings
lasting for such a Jong time would by itself mean considerable harassn1cnt for
an accused person.
Therefore, it would not be fair or just to further prolong
the proceedings by remanding the case to the trial Court. to examine the evidence
E
afresh after ignoring the 3tatutory presumption. f226E~F]
(2) This Court also docs not exafnine the evidence for itself in appeals.
under Art. 136 except when interests of justice so demand.
In the i!'.'stant case,
the same facts constitute the offence under s. 161. I.P.C. to which the statutory
presumption under s. 4( 1) of the Prevention of Corruption Act is ad1nittedly
applicable.
There is thus no question of grave. failure of justice or of a
~uilty person escaping justice. if this Court does not
exan1ine
the
evidence
tor determining the guilt of the ·appellant under Ss. 5(1) (d) and 5(2) of the'
F
Act.
f226B-C, F-Gl
(3) The question of sentence is always a difficult question requiring a
proper adjustment of the reforn1atory, deterrent and punitive aspects of punishment.
In the instant case. considering the facts .that the appellant is going to
lose his iob and has to earn a Jiving for himself and members of his family,
the ends of justice· would be met by imposing a . fine instead of sending him
back to jail (the appe11ant was on bail) after 7 years of agony and harassment
of criminal proceedings.
[227 A-B, D-E~
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
23
of 1970.
·
Appeal by special leave from the Judgment and Order dated October
29, ·1969 of the Delhi High Court at New Delhi in Criminal Appeal
No. 103 of 1967.
R. L. Kohli,· for the appellant.
H. R. Khanna, for the respondent.
The Judgment of the Court was delivered by
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B. G. GOSWAMI V, D.ELll! AD~IN. (Dua, J.)
223
DUA, J.-The appellan( in this appeal by special leave rhallenges
1he judgment and order of a learned single Judge of the High Court of
Delhi dated October 29, 1969 upholding; on appeal, the appellant's
conviction under section 5(2) read with section 5(l)(d) of the Prevention of Corruption Act, 1947 and under sec.
l61, I.P.C.
The
Special Judge convicting the appellant by his order dated May 24, 1967,
had imposed a sentence of rigorous imprisonment for H years and also
imposed a fine of Rs. 200/- with three months' further imprisonment
in case of default of payment of fine under section 5 (2)
read with
section 5(1) (d) of the Prevention of Corruption Act; a similar subs-
, tantive sentence of imprisonment was imposed
under section
161,
I.P.C.
Both the substantive sentences were to run concurrently. The
High Court on appeal reduced the substantive sentence of imprisonment under both counts to rigorous imprisonment for one year .each.
The sentence of fine and imprisonment in default of paym~nt of fine
\V-35 ;.naintained.
·
Shri R. L. Kohli, the learned counsel for the appellant has addressed
elaborate arguments in support of this appeal and has severely criti·
ciscd the judgments and orders of both the courts below.
Before con·
sidcring the grounds of challenge, we may appropriately refer to the
broad features of the prosecution story.
One Madan Singh, who has appeared as P.W. 3 at the trial court,
was holding contract for supply of vegetables to the Sewa Kendra run
by Delhi Administration for the benefit of beggars.
The Store-!<.eeper
of the Kendra,. B. G. Goswami (appellant), is said to have told the
contractor that if the latter paid bribe to him, then all sorts of wgeta- .
bles supplied by him would be acceptable, but in case he did not do
so, no vegetable brought by him would be received.
Madan Singh
brought this demand to the notice of Shri Har Narain Singh, P.W. 10,
D.S.P., Anti-Corruption Police on 7-1-1966.
T11e D.S.P. thereupon
organised a raiding party consisting of Shri Kewal Ram (P.W. I) and
Shri Ram Rikh (P.W. 5); t1vo officials of the Sales-Tax Department
and some policemen.
Madan Singh produced five currency notes of
Rs. 10/- each and the witnesses are stated to have seen their numbers.
The D.S.P. duly recorded those numbers in his proceedings.
Madan
Singh is then said to have paid the five currency notes to tl1e appellant
. at Kiran Restaurant and the D.S.P. is stated to have recovered . them
from the right side pocket of the appellant's coat immediately thereafter.
.
·
The trial Court after considering the evidence led .in the case,
accepted the prosecution story in essential particulars and relying on
the presumption embodied in s. 4(1) of the Prevention of Corruption
Act an<'! convic.ted the appellant as already noticed.
In the High Court, the learned single Judge also felt that the prosecution case was fully supported by the evidence of the complainant
P.W. 3 and the two independent witnesses, Kewal Ram (P.W. 1) and
Ram Rikh (P.W. 5). The High Court noticed the fact that Kewal
Ram and Ram Rikh who had been directed by the D.S.P. to hear the
conversation between the complainant and the appellant were not able
to hear distinctly such conversation as the radio in the Restaurant was
224
SUPREME COURT REPORTS
[ 1974] 1 S.C.R.
being played at a very high pitch, but as both of them have deposed to
have themselves seen with their own eyes the currency notes being given
by the compiainant to the appellant and the same were recovered by
A
the D.S.P. from the same pocket of the appellant's coat in which the
currency notes had been put by liim after acceptance, their failure to
distinctly hear the conversation was held to be immaterial.
The High
Court also referred to the presumption embodied in s. 4 (l) of the
B
Prevention of Corruption Act and observed that this
presumption
would apply only if it was established that the appellant had actually
accepted the currency notes.
If, however, the prosecution evidrnce
falls short of what is required to prove the fact of acceptance or if the
money had either been planted or foisted on the appellant by means of
deception or a trick, then this statutory presumption could not be invoked for establishing the appellant's guilt.
After noticing this princiC
pie the learned single Judge dealt with the appellant's explanation.
That explanation was that the currency notes in question had been
concealed within the folds of the bills which the appellant had to submit
in respect of the supplies of vegetables by him and that, therefore, the
appellant was unaware of the existence of the currency notes within
the folds of the said bills.
Reliance in support of this suggestion was
sought, on behalf of the appellant in the High Court, from the statement
of the complainant Madan Singh, P.W. 3 that the appellant had refused
to accept the currency notes in the Restaurant in the first instance but
they were later handed over to the appellant along with the bills.
The
learned single J udgc did not believe this version for the reason that
Kewal Ram (P.W. I) and Ram Rikh (P.W. 5) had not referred to any
such refusal by the appellant and it was not put to them hl crossexamination that any bills had been passed on to the appellant along
witli the currency notes.
These witnesses having_ clearly stated
that
what wa> passed on by the complamant to the appellant were currency
notes which were clearly visible to them, the defence suggestion was
also unacceptable.
Assuming, however, for the sake of argument, that
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the complainant was telling the truth that the appellanr had initially
declir.ed to accept the bribe, the complainant's later statement that he
actually pac,scd on the currency notes to the appellant who accepted
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them with full knowledge, although the bills -also
accompanied the
currency notes, could not be of any avail to the appellant's defence.
The initial hesitation on the part of the appellant must, according to the
High Court, have been overwme when the complainant placed the
curre11cy notes inside the folds of the bills.
The High Court in this
connection added that the witnesses must have seen the complainant
putting the money within the folds of the bills and then passing the
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same on to the appellant.
The appellant was acC<Jrdingly held to have
accepted the currency notes from the complainant with full knowledge
of the fact that what was being passed to him was money that was not
legally due to him.
The presumption under s. 4 (I) of the Prevention
of Corruption Act was in the circumstances considered to be applicabfe
to the case \Vith full force.
On this view, the High Court recorded the
order as already noticed.
H
Before us, Shri R. L. Kohli, the learned counsel for· the appellant
has very strongly contended that the appellant's conviction is wl'rolty·
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B. G. GOSWAMI V, DELHI ADMN. (Dua, J.)
22 5
unsustainable both on facts and in law.
According to him, Madan
Singh complainant, P.W. 3 had a grudge against the appellant because
the supplies of defective vegetables made by him had not been condoned.
The appellant had declined to receive the bills for the supply
of vt·getables which Madan Singh want~d to hand-over to the appellant
personally.
Madan Singh, it appears, played a trick by placing the
currency notes in question concealed within the folds of the bills and
handed over the bills to the appellant in the restaurant.
The appellant,
according to the submission, was wholly unaware of the existence cf the
currency notes within the folds of those bills. It was, therefore, not
possible to come to a finding that the appellant had accepted the curr.:mcy notes which were later recovered from him along with the said
bills.
The next argument strongly pressed on behalf of the appellant
relates to the presumption permissible under s. 4( 1) of the Prevention
of Corruption Act.
This presumption according to Shri Kohli,
ex,
pressly excludes cases covered under s. 5(1) (d) of that Act.
The
appellant's conviction under that clause of s. 5 (1) would, therefore,
haw to be examined by ignoring the presumption.
Once that presumtion is excluded, the evidence on the point falls far short of the required
standard for sustaining conviction in a criminal court.
This, the learn-
~d counsel ~ays, would only leave the offence under s. 161,
I.P.C.
But with respect to the offence under this section, if the presumption is.
foFthcoming and if the argument with respect to the appellant's plea of
ignorance about the existence of the currency notes within the folds
of the bills is not accepted, the counsel had practically nothing more to
say on the question of conviction thereunder. In that event, the learned coumel made a plea of, what he called, mercy, by submitting that
th~ offence was committed as far back as January 1966 and .he has
undergone- the harassment of the trial and of the appellate proceedings
during all these years and has been on bail since 1970.
This. according to the submission, should be considered a sufficient pu!!ishmcnt,
particularly when the appellant must also lose his job.
In our opinion, the evidence in the case which has been properly
aopr2ised by the Special Judge and by a learned single Judge of the
High Court fully establishes that the appellant accepted the currency
notes on January 7, 1966 in Kiran Restaurant from Madan Singh
and the same were recovered from his possession soon thereafter by
the raiding party headed by the D.S.P., Anti-Corruption, Shri Har·
Narain Singh; P.W.10. We no doubt permitted the learned counsel
for the appellant to take us through the relevant evidence because it
was suggested that the presumption permissible under s. 4(1) of the·
Prevention of Corruption Act was not at all attracted in this
case
because there was no evidence with re~ard to the acceptance of money
on which any rational or reasonable conclusion to that effect would
be based· After going through the evidence we entertain no doubt
that the two courts below have appraised the evidenee correctly and·
their conclusion is not open to further re-examination bv this Court
by way of independent re-appraisal of the evidence for itself.
Now with respect to the question of presumption we feel that there·
is merit in Shri Kohli's submission with respect to the offence under·
226
SUPREME COURT REpORTS
[ 1974 J 1 S.C.R.
·sec. 5 ( 1 ( d) of the Prevention of Corruption Act that the s~atut~ry
presumption is not available with respect to it. No doubt, this p~mt
was not raised in the courts below and it also escaped the attention
both of the Special Judge and the High Court. . The decision in R. C.
Mehta v. State of Punjab(1) was apparently not
brought to the
.notice of the courts below. But being a question of pure law which
_goes to the root of the matter relating to the appellant's convict~on
under sec. 5(1)(d) and sec. 5(2) of the Prevention of_Corrupt10n
Act, this Court would be fully justified in taking notic~ of this argument.
The appellant has, however, also been convicted under sec.
161, J.P.C., an offence to which the presumption embodied in s. 4(1)
of the Prevention of Corruption Act is admittedly applicable. According to the respondent, even without pressing into service the said
presumption the offence under s. 5(2) and s. 5(1){d) is fully established by cogent evidence on the presenf record.
In view nf these
considerations and in view of our decision on the question of sentence
to which we will advert later, we feel it is unnecessary from the point
·of view of substantial justice to go into the question of presumption
jn this appeal. If we uphold Shri Kohli's submission on this point, then
we will have to either examine the evidence ourselves or to remand the
case to the trial court for a fresh decision whether or not the offen~e
Under s. 5(l)(d) read with s. 5(2) of the Prevention of Corruptio~
Act is proved beyond doubt- on the evidence after ignoring the st~tutory
presumption. In ·this connection it is noteworthy that the offence in
question was committed in January 1966, more than 7 years ago.
The appellant was released on bail in February 1970 by this Court
and now we are in May 1973. Criminal proceedings lasting for more
than 7 years would by itself mean consiclerable- harassment for
an
accused person. It causes not only mental worry but it also means
expense apart from attendance in Court and a feeling of
agonising
suspense caused by the prolonged uncertainty of the result obstructing
·the continuity of his normal life. We also cannot ignore the fact _that
the appellant must lose his job.
On the facts and circumstances of this case, we do not think: it
would be fair or just to further prolong these proceedings by remanding the case ro the trial Court. This Court also does not examine the
_evidence for itself under Article 136 of the Constitution except where
the _larger interest of justice So demands.
In the present case it is
the same facts which constitute an offence under sec. 161, J.P.C. and
under s. 5(1){d) read withs. 5(') of the Prevention of Corruption
Act.
Therefore, there is no question of grave failure of ~ustice or
of a gUilty party escaping justice, if we do not examine the evi\lence
for ourselves for determining the guilt of the appellant under s. 5 (1)
( d) read with s. 5 (2) of the Prevention of Corruption Act
As already observed, the appellant's conviction under
s. 161,
1.P.C. was righ.tly upheld by the High Court and there is no cogent
~round made out for our interference with that conviction. The sen-
. ·tence of imprisonment imposed by the High Court for bo•b these offences is 1 year and this sentence is to run concurrently. The only ques-
(1 ~ \
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B. G, GOSWAMI V, DELHI ADMN. (Dua. J.)
227
lion which arises is that under s. 5(l}(d) read with s. 5(2) of thePrevention of Corruption Act the miniJllum sentence prescri~ed
~s.
rigorous imprisonment for one year and there must also be 1mpos1tio11 of fine, The sentence of imprisonment can be for a lesser period
but in that event the Court has to assign special reasons which m.ist
be recorded in writing.
In considering the special teasons the judicial
discretion of the Court is as wide as the demand of the cause of substantial justice. Now the question of sentence is always a difficult question,
requiring as it does, proper adjustment and balancing of various consid~rations which weigh with a judicial mind in determining its app1<}priate
quantum in a given case.
The main purpose of the sentence bw1dly
Staled is that the accused must realise that he has committed an act
whi.::h is not only harmful to the 'society of which he forms an integral
part but is also harmful to his own future, both as an individual and
as a member of the so:iety. Punishment is designed to protect society
by deterring potential offenders as a!so by preventing the guilty party ·
from repeating the offence; it is also designed to reform the offender
and re-claim him as a law abiding citizen for the good of the society
as a whole.
Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining
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this question.
In modern civilized rocieties, however,
reformatory
aspect· is being given somewhat greater importance.
Too lenient as
well as too harsh sentences both lose their efficaciousness. One docs
not ··deter and the other may frustrate thereby making the offender a
hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant
back to jail now after 7 years of the agnoy and harassment of these
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proceedings when he is also going to lose his job and to- earn a living
for himself and for his family members and for those dependent on
him, we feel that it would meet the ends of justice if we reduce the
sentence of imprisonment to that alre1dy undergone but increase the
sentence of fine from Rs· 200/- to Rs. 400/-. Period of imprisonment in case of default will remain' the same.
This appeal is accepted in .part in the terms just stated.
V.P.S.
Appeal allowed in part.