Jayawant Kamath vs State

V. Jagannathan, J.—This appeal is by the accused who has been convicted in respect of the offences punishable under Sections 420, 467, 471, 477A of IPC and u/s 5(2) r/w Section 5(1)(d) of the Prevention of Corruption Act and was sentenced to various periods of R.I. and was directed to pay a fine of Rs. 5,000/- in respect of each one of the above mentioned offences and default sentence also was imposed by the trial court.

The case of the prosecution in short is that, the Appellant, working as Special Assistant, Syndicate Bank, Divisional Office, Mangalore, while looking after the Stationery pool attached to the Divisional office during the period from June 1980 to July 1982, committed criminal misconduct and cheated the bank to the tune of Rs. 83,980-84 and in the process, he had prepared false debit vouchers and therefore committed the offences punishable under the aforementioned sections.

At the trial, the prosecution examined 24 witnesses and produced 65 documents and accused statement was recorded which was one of denial and the accused led no evidence.

Learned trial judge found that the prosecution had brought home the guilt of the accused beyond all reasonable doubt and accordingly the accused was convicted in respect of each one of the aforementioned offences and was sentenced to three years R.I. and to pay a fine of Rs. 5,000/- in respect of each conviction except insofar as the offence under the Prevention of Corruption Act in which he was sentenced to under go R.I for two years and fine amount was maintained at Rs. 5,000/-

Learned Counsel for the Appellant. Sri. Chandrashekar at the outset fairly submitted that the Appellant himself has admitted having misappropriated the amount by admitting the guilt before the enquiry officer on the first date of the enquiry itself and therefore taking note of the above conduct of the Appellant and also having made good the amount which he had misappropriated, the sentence imposed be reduced insofar as imprisonment is concerned to the period already undergone by the Appellant in custody and as far as the fine amount is concerned, the court may consider as to the fine amount to be imposed.

Learned Counsel also argued that the peculiar circumstances of this case are that the Appellant not only admitted his guilt, but he was also dismissed from the services and the incident pertains to the year 1983 and moreover 28 years have gone by and the Appellant is also suffering from illness and therefore taking these factors into account and also the Apex Court decision reported in D. Srinivasan, etc. Vs. Delhi Special Police Est. etc., , the court may consider reducing the sentence imposed by the trial court.

Learned Counsel for the Respondent C.B.I. Sri. Prasanna Kumar also submitted that the trial court has rightly convicted the Appellant and sentenced him and the Appellant has also paid the amount to the bank on admitting the guilt at the enquiry itself.

Having thus heard both sides, the only point for consideration is, whether the period already undergone by the Appellant in custody could be set off against the sentence of imprisonment imposed by the trial court. It is not in controversy that the incident happened as far back in the year 1980-82 and the case itself was of the year 1989 and more than 28 years have passed and during all these period the Appellant must also have undergone lot of mental tension and agony apart from having lost his job and obviously Appellant''s family also must have suffered during all these years.

The Apex Court considered a case of such a type in criminal appeal in the case of D. Srinivasan, etc. Vs. Delhi Special Police Est. etc., and reduced the sentence to the period already undergone by the Appellant in the said case and in the process, it made the following observations at Para. 6:

The occurrence is said to have taken place in the year 1969. Now nearly twenty three years have elapsed. All the Appellants must have become very old and the learned Counsel says that some of them may have died but not able to give the names as such but he is definite that A-1 has died. The Appellants have undergone the ordeal of trial for a number of years and convictions have been hanging on their heads for all these years and they have also lost their jobs and they have large family dependent upon them. In such circumstances the Court can award lesser sentence than one year which is the maximum sentence u/s 5(2) of the Prevention of Corruption Act. The Section as is stood in the year 1969 lays down that the Court for any special reason recorded can impose a sentence of imprisonment of less than one year. The circumstances pointed out above do warrant that a lesser sentence should be imposed. From the records we find that the Appellants were in Jail for some time and in these circumstances we confirm their convictions and reduce the sentence under each charge to the period already undergone. The sentences of fine in respect of A-1 in Criminal Appeal No. 784/80 D. Srinivasan, A-4 in Criminal Appeal No. 617/80 Sandanaswamy and A-7 in Criminal Appeal No. 592/80 A.R.M. Perumal Chettiar are confirmed with default clause.

In the present case also, the Appellant has admitted the guilt which is a factor which will have to be considered in his favor as the Appellant does not dispute he having misappropriated the bank amount. Secondly, more than 28 years have gone by and the Appellant also has lost his job in the bank and obviously this must have had a telling effect on the Appellant''s family members. Apart from these factors, the Appellant must have undergone the ordeal of trial for number of years and also mental agony. The Appellant was said to be in custody for a period of 28 days.

Taking note of all these factors and also drawing a leaf from the aforesaid decision of the Apex Court, in the instant case, the period already undergone in custody can be set off against the sentence imposed while maintaining the conviction and as far as the fine amount is concerned, it can be increased to Rs. 10,000/- for each one of the offences in respect of which the Appellant was convicted and in default of payment of fine of Rs. 10,000/-, the Appellant can be directed to undergo default sentence of six months in respect of each of the offences.

In the result, the following order is passed:

The sentence of imprisonment imposed by the trial court is set off against the period already undergone by the Petitioner in custody.

The sentence of fine amount is concerned, the fine amount is doubled in respect of each one of the offences in regard to which the Appellant was convicted and the default sentence is for a period of six months in the event if fine amount is not paid. The fine amount shall be deposited within eight weeks from the date of receipt of a copy of this order.

The appeal is therefore allowed to the extent of the above modification.