Nand Kishore Rai vs Central Bureau Of Investigation

This is an application for bail under Section 389 of the Code of Criminal Procedure, 1973 for suspension of the order of sentence dated 07.2.2018

passed by the learned Judge, CBI Court (Special), Alipore, South 24 Parganas in Special Case No. 12 of 2015 corresponding to Case No. RC-

3(A)/2013/AC-III dated 21.3.2013 convicting thereby the appellant of the charge for commission of offence punishable under Section 13(1)(e) of the

Prevention of Corruption Act and sentencing him to suffer imprisonment for six years and to pay fine of Rs.10 lakhs in default to suffer imprisonment

for one year more.

It is submitted that the appellant was all long on bail and never misused the bail privilege granted to him by learned Special Judge. It is further pointed

out that the appellant/petitioner has a good arguable case and fair chance of success. Mr. Milan Mukherjee, learned senior advocate, has invited my

attention by pressing in service the final report which shows that the appellant/petitioner along with other accused persons were not charge sheeted in

connection with FIR No. 01(A) dated 04.01.2013 under Sections 7,12, 13(2) r/w 13(1)(d) of Prevention of Corruption Act read with Section 120B of

the Indian Penal Code.

Particulars of the accused persons who have not been charge sheeted shown in the final report submitted by the Inspect of Police CBI/ACU VIII/

New Delhi on 28.5.2014. It appears prima facie therefrom that the appellant/petitioner was the main contact person in the office of Commissioner,

Customs(Port), Kolkata for facilitating the case of Rajesh Sarda for grant of permission for transportation of cargo through rail route and he allegedly

took bribe amount of Rs. 15 lakhs from Shri Rajesh Sarda and forwarded Rs. 10 lakhs to S.S. Bisht for further payment of the same to Pydi Rama

Prasad/Shri P. Vijay Kumar.

It reveals from the seizure list cum Memo dated 09.01.2013 that Rs.36 lakhs were recovered from the master bed room of the petitioner/appellant and

the appellant Smt. Bandana Rai (CRA 96 of 2018). My further attention is invited to the charge framed by the learned Judge, C.B.I Special Court that

during the check period on and from 31.5.2005 to 09.01.2013 which comes about 68.45% of the petitioner/appellant’s income to the tune of Rs.

45,25,121/- .

My attention is further invited to deposition of P.W 9 Sri Jyoti Bagga revealing that amounts were received at the hand of Bandana Rai, the wife of

the present petitioner/appellant and from the available documents it was noted that account of the company are maintained on Telly Software and

cash transaction of Rs.16 lakhs paid to Bandana Rai which was reflected in the books of accounts of the M/s. Sherpur Cold Storage Pvt. Ltd. on

18.12.2012. Company had sufficient cash in hand as on 18.12.2012, as per the cash book of the company. It further appears on evidence that as on

31st March 2013 there was cash of Rs.22,22,640/-cash in hand of Smt. Ram Keshari Devi and it was explained that Rs. 19 lakhs was given out of this

cash balance and Ram Keshari Devi did not give the money to Smt. Bandana Rai for the purpose of keeping the same with her.

These are the factual aspects on evidence and the merits of the case which are required to be considered at the time of hearing of the appeal. Mr.

Mukherjee fortified his contention by referring to a decision in the case of K.C. Sareen Vs. CBI, Chandigarh, reported in (2001)1 SCC 584 to the

observation made in paragraph 11 of the said decision as under:-

“11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to

Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge

of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the

ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what

should be the position when a public servant is convicted of an offence under the PC Act.

No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence of the offence under the PC Act, the superior

court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose

unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the

sentence of imprisonment as a sequel thereto, is a different matter.â€​

Having considered the submissions of the appellant and the fact I am of the view that the sentence be suspended till the hearing of the appeal as the

hearing of the appeal may take some time in going to its merit. Although I am mindful of the gravity of the case that this is one of the classical cases

pertaining to economic offence and the Court has to deal with a strong hand while considering the bail application, nevertheless, I am of the clear

opinion bearing upon the decision in K.C. Sareen (supra) that till the matter is heard on its merit, the appellant/petitioner, Nand Kishore Rai, be

admitted on bail, on furnishing bond of Rs. 50,000/- with two sureties of Rs.25,000/- each, one of whom must be local, subject to satisfaction of the Ld.

CJM, Alipur.

As submitted by the learned advocate for the CBI, the hearing of the appeals be expedited. The department is directed to prepare requisite number of

paper books as the L.C.Rs have already been received. Thus, CRAN 1015 of 2018 is disposed of. List the matter under the heading “Criminal

Appeal Hearing†after completion of above formalities. Urgent photostat certified copy of this order, if applied for, be given to the parties upon

compliance of all formalities.

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