T. Sudanthiram, J.
1. The appellant herein who is the first accused in Special Case No. 1 of 1998, on the file of the Chief Judicial Magistrate, Chenglepet, stands convicted under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act and sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 1000/- in default to undergo two months rigorous imprisonment for the offence under Section 7 of the Prevention of Corruption Act and also sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 1000/- in default to undergo two months rigorous imprisonment for the offence under Section 13(2) r/w 131(1)(d) and the sentences of imprisonment are to run concurrently. Aggrieved by the said conviction and sentence, the appellant has preferred this appeal.
2. The case of the prosecution, in brief, is that P.W.2, Neelamegam was the Deputy Manager of 'Futura Polymers Ltd.,' at No. 1-A, Kamarajar Salai, Chinnasekadu, Madras-68, P.W.4, Ramakrishnan was the General Manager of the Company and P.W.5 was the Managing Director of the said company. The company is within the jurisdiction of Chinnasekadu Town Panchayat. The company had applied for issuance of dangerous and offensive trade license. Ex.P.29 is the application, Ex.P.2 is the covering letter. The first accused/appellant herein called for certain documents through letters dated 13-12-1994,20-3-1995,28-6-1995,26-9-1995 and 5-10-1995, Exs.P.4 to P.8 and the company also replied to those letters. Ex.P. 10 is the reply dated 30-1-1995 given by P.W.4. In the letter dated 13-5-1995, a cheque for Rs. 33,890/- was also sent to the Panchayat Union as informed through letter Ex.P.7 by the first accused. As no receipt was received for the payment through cheque till 01.11.1995, P.W.2 went to the Office of the first accused on 30.10.1995 and enquired him about the license. At that time, the second accused was also present by the side of the first accused. Then the first accused saying that he had to issue the license, demanded a sum of Rs. 10,000/- as bribe. He also directed P.W.2 to meet him on 17.05.1995. P.W.2 has not informed this to anyone in the company. On 27.05.1995 P.W.2 again received the telephone call from the first accused and as such, he went and met the first accused at about 4.00p.m., in his office. The second accused was also with him. The first accused questioned P.W.2 as to why he did not come with the amount on 17.05.1995. Then P.W.2 replied that the company was not in the habit of giving bribe and as the accused was insisting him, he would inform the matter to the company Manager and also informed the accused that he would meet him on 31.12.1995. P.W.2 also informed this matter to P.W.4 and P.W.5, but P.W.2 was asked to meet the first accused and to insist for the license without paying the bribe amount. On 31.10.1995, P.W.2 went and met the first accused and informed that the company was not in a position to pay the bribe amount. Then the first accused told him that on the next day at about 2.00 p.m, he would visit his office and also would bring the receipt for the payment which has already been made. P.W.2 also told him that, if bribe amount is not paid to him, he would delay the issuance of license and therefore asked him to keep ready the amount, in turn P.W.2 informed this to P.W.4 and P.W.5. P.W.2 was instructed to give a complaint to the Vigilance and Anti Corruption Cell. P.W.2 was also allowed to draw the money of Rs. 10,000/- from the accounts department. P.W.2 went to the Vigilance office at about 5.15 p.m and handed over the written complaint Ex.P.15 to the Deputy Superintendent of Police. On the direction of the Deputy Superintendent of Police, P.W. 11, Inspector of Police received the complaint and registered the case in Crime No. l of 1995 and prepared the First Information Report Ex.P.38. P.W.2 was instructed to come on the next day at 9.30 a.m. P.W. 11 also arranged for the mahazar witness. On 01.11.1998 at about 9.30 a.m. P.W.2, P.W.3 Kandan and another Lakshmanan all appeared before the Vigilance officer. P.W.2 was introduced to the witnesses and they were explained about the phenolphthalein test. P.W.2 was instructed to pay M.O.I series currency notes only on demand by the accused. He was also informed to give a signal by mopping his face with the handker-chief. An entrustment mahazar mentioning all the details was prepared under Ex.P. 16. Then the trap laying party proceeded from the Vigilance office and reached the company office at about 12.45 p.m. P.Ws.2 and 3, the accompanying witnesses went inside the company's office. P.W.2 instructed P.W.3 to sit in the chair in front of the computer which was in the opposite direction to the seat of the accused. At about 1.30 p.m. both the accused 1 and 2, entered into the office of P.W.2. They were also holding the file and bill book. The first accused asked P.W.2 whether the bribe amount of Rs. 10,000/- is ready. P.W.2 made request to reduce the amount from Rupees 10,000/- to Rs. 8,000/-, but the first accused refused. P.W.2 requested him to give the receipt for the payment which has been already made and the accused particularly asked whether the amount was ready. The first accused directed the second accused to give the receipt. Ex.P. 17 series are the receipts given to P.W.2 and the acknowledgment was also received. Then P.W.2 enquired about the license. He also handed over the amount M.O.I currency notes to the first accused. The first accused after counting the money, kept it under the file which he had brought. P.W.2 came out of the office and gave the pre-arranged signal by mopping his face. P.W. 11 rushed into the office and the accused were identified by P.W.2. Sodium carbonate solution was prepared and the first accused was asked to dip his fingers in the two glass tumblers and the solution in which the right hand was dipped turned into more pink colour and the solution in which the left hand was dipped turned into pink colour slightly. Then the first accused was asked to handed over the money and he took the money from the file and hand over to P.W.2 Inspector. The numbers in the currency notes were compared. Then P.W. 11 followed the formalities and seized the articles and other documents. Then he prepared the recovery mahazar Ex.P.42, and also arrested the accused at about 3.00 p.m. P.W. 12, Inspector of Police, vigilance and anti-corruption took up the investigation on 10.11.1995 and examined the witnesses. In the month of September, as he was transferred from the post, the investigation was continued by the Deputy Superintendent of Police, P.W. 13 and from P.W.1 sanctioning authority obtained sanction order Ex.P.1 and on completing the investigation he laid the final report on 06.03.1998.
3. The prosecution has examined 13 witnesses, marked 48 exhibits and produced 3 material objects.
4. When the accused were questioned under Section 313 Cr.P.C with regard to the incriminating circumstances available against them, they denied their complicity. The accused have not chosen to examine any defence witness. During the cross examination, the defence side has marked Exs.D1 to D4. The first accused had stated in his evidence that he had sent notice to the company for the unauthorised construction and he also recommended the proposal to the M.M.D.A for the demolition of construction and he was delegated the powers for demolition. As there was a motive, the case has been foisted against him. The second accused has stated that he used to accompany the officers and collect the taxes and only in that manner, he had accompanied the first accused.
5. Mr. K. Srinivasan, learned Counsel for the appellant/first accused submitted that the case of the defence is that the accused never demanded money and he had not received any money from P.W. 2; and it was only P.W.2 who had planted the money in the file without the knowledge of the accused. The documents marked by the accused Ex.D1 to D4 would clearly establish that the company had the motive and had all the grudge against the accused and as such they have conspired and implicated the accused falsely. The learned Counsel for the appellant further submitted that there was no reason for the accused to demand money, since already the process had been completed and issuance of license was not in the hands of the accused and Exs.P.33, P.34, P.35, P.44 and P.45 would show that on 19.10.1995 itself the accused informed M.M.D.A and also requested them to accord approval and it was also intimated duly to the Manager of the company. If the demand for the payment before 18.10.1995 is true, the accused would not have sent letter on 19.05.1995 and as such his subsequent demand on 27.10.1995 and 30.05.1995 is also false. The learned Counsel for the appellant further submitted that when there is a strong motive for the company as per Exs.D1 to D4 against the accused, the version of the accused that money was planted by P.W.2 in the file without the knowledge of the accused should be accepted. The learned Counsel for the appellant also relied on the answer given by P.W. 3 mahazar witness who had stated that after P.W. 11 and P.W. 10 went into the room, the accused was asked to take the money and handed over to the Inspector and thereafter only the accused was asked to dip his fingers in the sodium carbonate solution; and vehemently contended that that the phenolphthalein test though proved positive, does not help the prosecution case. On the other hand, the answer given by P.W.3 strengthens the version of the accused that the money was planted. He further submitted that the accused need not prove his case beyond doubt, but if an explanation given which is acceptable on probabilities, then it should not be rejected.
6. The learned Counsel for the appellant also relied on the decision of the Honourable Supreme Court reported in : 2006CriLJ804 (T. Subramanian v. State of Tamil Nadu), observed in paras 12 and 16 as follows:
12. ...If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted....
16. The High Court did not consider the explanation offered by the appellant for the receipt of the money nor the previous enmity harboured by P.W.I, P.W.2 and P.W.6 towards the appellant. Nor did it hold that the decision of the trial court was erroneous or perverse.
7. Mr. N. Kumanan, learned Government Advocate submitted that it is a specific case of P.W.2 that the company was not in the habit of giving bribe and even in the documents filed by the accused in Ex.D.4, the company had already made the allegation about the demand of bribe by accused. Though the accused had sent letters on 19.10.1995, he had not issued receipts for the payment made through cheque and P.W.2 also stated that the accused threatened him by saying the process of issuing license should be delayed and it is also mentioned in Ex.P.15 complaint, that if the accused not paid, he would spoil the whole issue.
8. The learned Government Advocate further submitted that there is no reason for the accused officially to visit the office of P.W.2 but it was only for the purpose of receiving the bribe amount. The version of the accused that the accused was invited to the office to explain to the Managing Director about the delay in giving license is highly improbable. The learned Government Advocate further submitted that the evidence of P.W.3 that the accused was asked to take the currency notes and handed over it to the police officer even prior to conducting of the phenolphthalein test is not correct and the evidence of P.W. 11 as per the recovery mahazar in which P.W.3 also signed, the money was handed over by the accused to the police officer only after phenolphthalein test: was conducted.
9. The learned Counsel for the appellant by abundant caution, made submission that the accused is aged about 70 years and had heart surgery and in the event of confirming conviction prayed that the rigorous imprisonment may be converted as simple imprisonment thereby enabling the accused to approach the State Government under Sub-clause (d) of Section 433 Cr.P.C for commutation of imprisonment to a fine. He further submitted that the accused is prepared to pay any additional fine and sought for a recommendation from this Court to the State Government. The learned Counsel also submitted that there are some precedents and placed reliance on the decision of this Honourable High Court reported in 2007 L.W. (Crl.) 123 (S.P. Meriappan v. State of Tamil Nadu) and also the unreported judgment of this Court in Crl.A. No. 545 of 1999 dated 26.06.2007.
10. The learned Government Advocate submitted that an accused under the Prevention of Corruption Act cannot be released under the Probation of Offenders Act and as such, the person convicted under the Prevention of Corruption Act does not deserve for any recommendation for remission or commutation of sentence. The learned Government Advocate also produced the copy of the Government Orders wherein the prisoners were released on premature (sic). Even as per those orders, the prisoners sentenced under the Prevention of Corruption Act were not considered for premature release. He relied on G.O.Ms. No. 1762, Home (Prisons. VI) Department dated 20.07.1987 and G.O.Ms. No. 164 Home (Prisons IV) Department, dated 02.02.1996.
11. This Court considered the submissions made by both parties, the evidence of witnesses and other records.
12. This Court considered the submission made by both parties and perused the evidence of witnesses and other records. According to P.W.2 decoy witness, a demand for a sum of Rs. 10,000/- as bribe was made by the first accused on 13.10.1995, 27.10.1995 and 31.10.1995. Though it is contended by the defence that there is no corroboration for the earlier demand made by the accused and there was no necessity for the accused to demand the amount as already necessary formalities as far as the first accused is concerned have been carried out; it is a specific case of P.W.2 that if the amount is not paid, the issuance of license would be delayed. In Ex.P. 15 complaint given by P.W.2, it is mentioned that the accused reiterated his demand for Rs. 10,000/- and when P.W.2 requested him to give up the demand, first accused refused to give up the demand, and stood firm that it should be paid to him on 01.11.1995 at about 2.00p.m., positively or else he would spoil the whole issue. P.W.2 also mentioned in Ex.P. 15 that it is not known whether the accused himself would issue the license or simply forwarded the same to the authorities. Though it is the case of the accused that on 19.10.1995 itself the accused had forwarded the letter to the authorities for giving approval for the proposal sent by the company; in Ex.P.44, the letter forwarded to the Manager of the company, it is not clearly mentioned that a letter has been forwarded by the accused to the authorities for approval and for no objection. At the end of letter, it is mentioned as follows:
Once again we will call in short time with your proposal forwarded (and) recommended, to concern authorities on request to accord installation and running licence as early as possible.
It appears from this that the accused wanted the company authorities to meet again. Therefore, it cannot be said that the accused was not having any more connection with the proposal.
13. It is the case of the defence that the accused has been responsible for levying the property tax of Rs. 6 lakhs for Indian Organic Chemicals Company of which the complainant company was a part of it. From Rs. l lakh to Rs. 6 lakhs it was increased and further the complainants company had commenced the construction even before getting license and the accused had taken steps for the demolition of the construction and further the license fee of Rs. 2050/- for the Indian Organic Chemicals Limited was raised to Rs. 2 lakhs and writ petitions were filed by the Indian Organic Chemicals Limited against the Executive Officer of the Panchayat which are marked in the documents as Exs.D1 to D4. The Indian Organic Chemicals Limited was having dispute with the Chinnakadu Panchayat. In fact on 14.02.1995, the tax in respect of the buildings have been enhanced and the communication has been sent by the accused to the Indian Organic Chemicals Limited. W.P. No. 574 of 1995 was filed praying for interim injunction restraining the Panchayat from taking action on the notice dated 14.02.1995. W.P. No. 10378 of 1995 has also been filed seeking direction to the Executive Officer, Chinnasekadu to forward the drawings and plans submitted by the company to MMDA. The effort taken by the defence to show that the company was very much affected by the Executive Officer of the Chinnasekadu Panchayat is appreciable. whereas at the same time, in the affidavit filed in W.P. No. 10378 of 1995, in paragraph 10, it is mentioned that the Executive Officer of Panchayat Union, was making very many unlawful demands. In such circumstances, though there has been a friction between the company and the Executive Officer, the demand for the bribe amount by the accused cannot be ruled out.
14. On the date of trap, it was only the accused who had visited the office of P.W.2. If the accused had been knowing already about the allegation made against him in writ petition which was filed in the month of August, 1995, he would have strongly objected to him and he would not have visited the office of P.W.2. The present explanation of the appellant/first accused that only in order to explain about the delay in granting license to the authorities of the company, is highly improbable. It was the duty of P.W.4 to convey the message to his superiors. This Court feels that the explanation by the first accused for going to the office of P.W.2 is unacceptable.
15. The first accused had denied about the receipt of the amount itself. Even in a case of denial of the receipt of amount by the accused, if the prosecution establishes by evidence the fact of payment of amount and accused receiving it, then the presumption under Section 20 of the Act should be drawn. Only if the accused accepts about the receipt of the amount, but rebuts the presumption by his explanation for receipt of the amount, then the court has to see whether the explanation given by accused is probable and acceptable. This is a case wherein the accused had stated that the money was planted in the file. The version of the accused that the money planted in the file is not supported by any material. On the other hand, the case of the prosecution that money was given to the accused and it was received by accused. Therefore Section 20 of the Prevention of Corruption Act comes into effect and the presumption is to be drawn.
16. The only flaw that appears in the prosecution case is the evidence of P.W.3 that the accused was asked to take the currency notes even before the phenolphthalein test was conducted. In view of the evidence of P.W.2 and P.W. 11 and recovery mahazar Ex.P.24 that part of evidence by P.W.3 does not seem to be correct. Such evidence was given by P.W.3 only in a negligent manner. In the re-examination, his attention has not been drawn to the recovery mahazar. Still P.W.3 who is an independent witness had clearly spoken about P.W.2 handing over the bribe amount to the first accused and the first accused receiving it and keeping underneath the file.
17. For the reasons stated above, this Court holds that the prosecution has proved its case beyond reasonable doubt that the accused demanded the bribe amount and accepted it.
18. With regard to the sentence, the accused is already sentenced only to a minimum period of one year imprisonment. With regard to the request made by the learned Counsel for the appellant, to convert the rigorous imprisonment to simple imprisonment and for a direction to the State Government to invoke Section 433(b) of Cr.P.C., this Court is reluctant to make such recommendation in this case.
19. In the decision reported in 2007 1 L.W.(Crl.) 124 (S.P. Meiappan v. State of Tamil Nadu), it has been held as follows:
15. However, Mr. S. Ashok Kumar, learned Senior Counsel would submit that the accused has paid the entire amount as admitted by the prosecution and thus there is no loss to the Bank. The Bank has not lodged any complaint. But on some information, the CBI itself has registered a case and prosecuted the accused which ended in conviction. At the time of conviction the accused was 64 years of age and now he is 72 years old and according to the learned Senior Counsel his movements are restricted and he is not able to move freely without the assistance of his close relatives and would submit that if he is sent to jail he will not survive. Therefore, the learned senior counsel would submit the following judgments of the Honourable Supreme Court.
16. In N. Sukumaran Nair v. Food Inspector, Mavelikara reported in 1997 SCC (Cri) 608, it has been held as follows:
'3.The offence took place in the year 1984. The appellant has been awarded six months simple imprisonment and has also been ordered to pay a fine of Rs. 1000/- Under Clause (d) of Section 433 of the Code of Criminal Procedure, 'the appropriate Government' is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by. We, therefore, direct the appellant to deposit in the trial court a sum of Rs. 6000/- as fine in commutation of the sentence of six months simple imprisonment within a period of six weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of such fine, the State Government may formalise the matter by passing appropriate orders under Clause (d) of Section 433 of the Code of Criminal Procedure.17. In Badri Prasad v. State of M.P. reported in 1996 SCC (Cri.) 79, their Lordships have taken the similar view, which is as follows:
2. There is some scope, however, towards the sentence because this Court granted in 1989 leave and the appellant is on bail. We would rather now scale down the sentence of six months RI to three months simple imprisonment, which sustaining the fine of Rs. 1000 as awarded by the Courts below. Subject to this modification in the sentence, the appeal otherwise fails. This has been made to enable the appellant to approach the State Government under Sub-clause (d) of Section 433 for conversion of simple imprisonment of fine. Since the adulteration was only by adding a colouring agent in the chillies powder and that was possibly done to please the customer's eye, we recommend that the State Government release the appellant on the charging of Rs. 2000/- as fine and that an appropriate order be passed by the State Government to that effect within a period of three months. The appellant shall deposit in the trial court under two heads the fine imposed by the Court i.e., Rs. 1000/- as also the alterable fine of Rs. 2000/- within a period of three weeks from today and apprise the State Government of his having discharging his obligation. On his doing so the appellant need not be arrested.
18. Considering the age of the accused, the fact that he has already repaid the amount and the misappropriation was only temporary in nature and also the fact that the said offence took place in the year 1990, I am inclined to modify the sentence. As far as conviction under Section 409 IPC and 13(1)(c) of the Prevention of Corruption Act, 1988 are concerned, the sentence of two years rigorous imprisonment imposed for each offence is modified as one year simple imprisonment under both the Sections and the first accused is directed to pay an additional fine of Rs. 25,000/- to be deposited before the Special Court for CBI cases, Coimbatore. This is to enable the appellant/ accused to approach the State Government under Sub-clause (d) of Section 433 Cr.P.C, for conversion of simple imprisonment to fine. Since there is no loss to the Bank and no complaint has been preferred by the Bank in this regard, I recommend that the State Government release the appellant on the charging of Rs. 3000/- as fine and that an appropriate order be passed by the State Government to that effect within a period of three months. The appellant shall deposit in the trial court under two heads the fine imposed by the Trial Court i.e., Rs. 1000/- and the additional fine of Rs. 25,000/- imposed by this Court as also the alterable fine of Rs. 3000/- within a period of three weeks from today and apprise the State Government of his having discharged his obligation. On his doing so, the appellant need not undergo the sentence of imprisonment.
Otherwise, he shall undergo the modified sentence as stated earlier.
20. Similarly in Crl.A. No. 545 of 1999 dated 26.06.2007, His Lordship Justice A.C. Arumuga Perumal Adityan, passed an order as follows:
20. Under such circumstances, considering the age of the accused and the fact that he has already repaid the entire amount of ill gotten money and also the fact that the accused had undergone by-pass surgery even in the year 1990, I am inclined to modify the sentence alone as indicated above. As far as the conviction of the trial Court is concerned the same is confirmed, but the sentence alone is modified as follows:As far as the sentence under Sections 120(B) r/w 420, 467, 468, 471 r/w 465 IPC is concerned the sentence of one year rigorous imprisonment is modified to that of one year simple imprisonment and under Section 420 IPC and under Section 13(2) r/w 13(l)(d) of the Prevention of Corruption Act, 1988, is concerned the sentence of two years RI for each offence is modified to that of one year SI each. The appellant/A1 is further directed to pay an additional fine of Rs. 25,000/- to be deposited before the Principal Sessions Court for CBI Cases, Chennai, to enable the appellant/A1 to approach the State Government under Sub-section 3 of Section 432 of Cr.P.C, for conversion of simple imprisonment to fine. Since there is no loss to the bank and no complaint has been preferred by the bank in this case, it is further charging fine of Rs. 3000/- and to pass an appropriate order to that effect within a period of three months from this date. The appellant shall deposit the additional fine of Rs. 25,000/- imposed by this Court and also three weeks from today and appraise the State Government to dispose of this application. On doing so, the appellant need not undergo the sentence of imprisonment, otherwise he shall undergo the modified sentence as stated earlier. With this direction Crl.A. No. 545 of 1999 preferred by the appellant/A1 stands disposed of.
21. Section 433(d) of Cr.P.C reads as follows:
433. Power to commute sentence:- The appropriate Government may, without the consent of the person sentenced, commute:
(a) ...
(b) ...
(c) ...
(d) a sentence of simple imprisonment, for fine.
Commutation of simple imprisonment under Section 433(d), Cr.P.Code:- When High Court imposed sentence of six months simple imprisonment and a fine of Rs. 1000 for an offence under the Prevention of Food Adulteration Act, 1954, the Supreme Court having found that the offence was committed long ago, i.e., in 1984, held that it would be an appropriate case for commutation of sentence of simple imprisonment under Section 433(d), Cr.P.C when almost a decade had passed. The Supreme Court directed the appellant to deposit in trial Court Rs. 6,000/- as fine in commutation of imprisonment and to move the State Government for commutation of the sentence of imprisonment- vide- N. Sukumaran Nair v. Food Inspector . Similarly, in another decision when adulteration consisted of addition of colouring matter to chilli powder, the Supreme Court reduced the sentence of 6 months rigorous imprisonment to simple imprisonment for three months and a fine of Rs. 1000 so that the appellant could move the State Government for commutation of sentence of simple imprisonment to fine under Section 433(d), Cr.P. Code and directed the State Government to impose further fine of Rs. 2000 in lieu of sentence over and above the fine of Rs. 1000 as already imposed and release the appellant- vide Badri Prasad v. State of M.P. .
22. It is true that the Honourable Supreme Court in some of the cases wherein the accused had been sentenced to simple imprisonment, directed him to pay some fine amount and then recommended to the State Government to pass appropriate orders under Clause(d) of Section 433 Cr.P.C. This Honourable High Court also has followed the same method.
23. As far as this Court is concerned, it is felt that the power to commute sentence under Section 433 Cr.P.C is purely vested with the appropriate Government. While so, under Section 433(d) for converting sentence of simple imprisonment and fine, the quantum of fine amount should be fixed only by the appropriate Government. Of course, the Honourable Supreme Court with the plenary power may fix the quantum and direct the appropriate Government to consider the case under Section 433 Cr.P.C. Though the High Court also may have the inherent power, whether such a recommendation could be made after fixing the quantum of the fine amount for an accused convicted under the Prevention of Corruption Act? Even the Probation of Offenders Act is not applicable for the person convicted under the Prevention of Corruption Act. As per the copy of the Government Orders produced, G.O. Ms. No. 1762, Home (Prisons VI) Department, dated 20.07.1987 and G.O.Ms. No. 164 Home(Prison-IV) Department dated 02.02.1996, the premature release of the prisoners was made applicable not for the prisoners sentenced under the Prevention of Corruption Act, Immoral Traffic Rules, Drugs Act and Prevention of Food Adulteration Act. In the said circumstances, this Court feels that it is not proper for the Court to recommend for commutation of sentence to a prisoner under the Prevention of Corruption Act. At the same time, it is made clear that it is only for the Government to decide whether to commute the sentence on the prisoner under Section 433 Cr.P.C, or not.
24. With the above observation, though this Court is not fixing the amount of fine and not recommending to the Government to invoke Section 433 Cr.P.C, the sentence of imprisonment imposed on the accused is altered from rigorous imprisonment to simple imprisonment. Now it is purely a matter between the accused and the Government under Section 433 Cr.P.C.
25. In the result, the conviction of the accused is confirmed and the period of imprisonment is also confirmed. But the rigorous imprisonment is converted as simple imprisonment.
26. Only with the above modification, the appeal is dismissed.