Pravinchandra Bhogilal Shah vs State Of Gujarat

Umesh Trivedi, J

1 . This is an application requesting for bail (suspension of sentence), pending final hearing of the appeal, which came to be admitted by an order dated 25.04.2019 challenging the judgment of conviction and order of sentence passed by the learned Special CBI Judge, CBI Court No. 5, City Civil and Sessions Court, Ahmedabad date 26.03.2019 in Special CBI Case No. 1 of 2007.

Vide impugned judgment of conviction and order of sentence, the learned Special Judge has been pleased to convict the applicant for an offence under Section 409 of the Indian Penal Code and ordered him to undergo 10 years rigorous imprisonment with a fine of Rs. 5,00,000/- and in default of payment of fine, he has to further undergo one year simple imprisonment. He has further been convicted for an offence under Section 462 of the Indian Penal Code and has been ordered to undergo 3 years rigorous imprisonment with payment of fine of Rs. 10,000/- and in default of payment of fine, he has to further undergo 10 days simple imprisonment. Again, the applicant is convicted for an offence under Section 468 of the Indian Penal Code and is ordered to undergo 5 years rigorous imprisonment with payment of fine of Rs. 15,000/- and in default of payment of fine, he has to further undergo 15 days simple imprisonment. He is also convicted for an offence under Section 471 of the Indian Penal Code and is ordered to undergo 3 years rigorous imprisonment with payment of fine of Rs. 5,000/- and in default of payment of fine, he has to further undergo 5 days simple imprisonment. Not only that, the applicant has also been convicted for an offence under Section 201 of the Indian Penal Code and is ordered to undergo 2 years rigorous imprisonment with fine of Rs. 2000/- and in default of payment of fine, he has to further undergo 2 days simple imprisonment. Over and above that, the applicant is also convicted for an offence under Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act and he has been ordered to undergo 5 years rigorous imprisonment with payment of fine of Rs. 15,000/- and in default of payment of fine, he has to further undergo 15 days simple imprisonment.

3 . Heard Mr. B.B. Nayak, learned Senior Advocate for Mr. Parth Contractor, learned advocate for the applicant. Mr. Nayak, learned senior advocate took me to the evidence of different witnesses and pointed out from the deposition of the witnesses and argued that prosecution has not proved that what amount is misappropriated. He has further submitted that how many ornaments have been misappropriated, are also not there on record and proved. He has taken me to the deposition of certain witnesses e.g. PW No. 2 Mr. Rajamani, PW No. 13 Shashikala Satish, PW No. 18 Lina Shital Duseja as also PW No. 8 Maruti Birbalji Hingve and submitted that the prosecution has miserably failed to prove misappropriation of any consolidated amount, and therefore, no case under Section 409 of the Indian Penal Code is made out. He has further submitted that there is no financial loss incurred by the Bank as also no customer has come forward with the list of articles alongwith proof thereof that they were placed in the locker by them or their relatives, which are misappropriated. He has further submitted that there is no discovery or recovery of anything from the present applicant, and therefore, misappropriation thereof is not proved on record. He has further submitted that since the applicant is dismissed from the service in the year 2006, he is out of harm's way and therefore, he may be enlarged on bail, when he was already on bail during the course of the trial. He has further submitted that pursuant to the dismissal, he has also lost his retirement benefit and considering his age and ailment with which he is suffering, if he is not released on bail pending an appeal, ailment would be accelerated. Mr. Nayak, learned Senior Advocate has relied on various decisions in support of suspension of sentence when the applicant is sentenced to limited duration sentence. Firstly, he relied on the judgment of the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai and Others V/s. State of Gujarat reported in (1999) 4 SCC 421. He has submitted that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. On the similar line, the judgment in the case of Kiran Kumar V/s. State of M.P. reported in (2001) 9 SCC 211, which also relied on the judgment of Hon'ble Supreme Court in the case of Bhagwan Rama Shinde (supra). He has also relied on decision in the case of Sunil Kumar V/s. Vipin Kumar and Others reported in MANU/SC/0673/2014 : (2014) 8 SCC 868. He has also relied on judgment in the case of N. Ramamurthy V/s. State by Central Bureau of Investigation, A.C.B., Bengaluru reported in 2019 (7) SCALE 13. In suppor of his case for suspension of sentence of the applicant, he has also relied on order passed by the Coordinate Bench of this Court in the case Gulam Abbas @ Gullubhai Nurhomammad Bhurani V/s. State of Gujarat in Criminal Misc. Application No. 25304 of 2017 wherein considering the ailment suffered by the accused - prisoner, his medical history is supported by the certificate issued by Jail Dispensary wherein it was stated that prisoner needs a supporting person for his day-to-day activity and on that ground, this Court enlarged the accused - prisoner in that case on bail. He has further relied an order passed by the Hon'ble Supreme Court in the case of Kishan Khubchand Korani and Anr. V/s. The State of Gujarat and Anr. in Criminal Appeal No. 859 of 2018, to submit that medical ground which is found favour with the Hon'ble Supreme Court where accused - applicant was 100% blind and suffering from profound hearing loss, though was also supported by the medical certificates issued to the applicant which were found to be correct after due verification by the State.

On the aforesaid grounds and relying on decisions referred to hereinabove, Mr. Nayak, learned Senior Advocate has requested the Court to suspend the sentence imposed upon the applicant and thereby release him on bail on suitable terms and conditions.

4 . As against that, Mr. R.C. Kodekar, learned Counsel for C.B.I., has taken me through final conclusion reached after appreciation of evidence by the learned Judge in the impugned judgment, more particularly, at paragraph no. 60 alongwith paragraph no. 63 and argued that after breaking open the lockers of the customers belongings found from therein were placed in locker nos. 1618 and 1634 of bank itself. He has drawn the attention of the Court from the judgment to the finding that applicant has forged and interpolated specimen signature card of locker nos. 1618 and 1634 wherein belongings found from lockers which were broken open and placed in those lockers, found missing and specimen signature card is interpolated so as to authorize him to operate it alone and none else. He has drawn the attention of the Court to Exh. 102 which is specimen signature card wherein special instruction in the specimen signature card that by any two jointly with chief manager shown and at sr. nos. 1 to 4, which included senior manager and two managers. However word "two" appears to be erased so as to authorize only Chief Manager to operate and subsequently jointly with chief manager one "S.M./Manager" appears to be inserted after the act is accomplished. Mr. Kodekar has further taken me to the findings recorded by learned Judge in paragraph no. 63 at page no. 123 of judgment wherein learned Judge after threadbare analysis of the evidence adduced before it concluded that new bank locker no. 1618 in the name of Bank which was got opened on 04.10.2002 by the accused and he has interpolated with the instruction in the specimen signature card of bank locker nos. 1618 and 1634 authorized him alone as signatory. Learned Judge has concluded that said interpolation with specimen signature card is made by the accused so as to see that both the lockers could be easily operated by him alone. It has been further concluded by the learned Judge that inventory carried out on different dates from 04.10.2002 to 22.10.2002 after breaking open certain lockers of customers, belongings found were placed in sealed cover in presence of the committee member and placed in locker no. 1618 in presence of them. However, again there is an interpolation, that too, by the accused - applicant, instead of locker no. 1618, cupboard is mentioned and that too, without knowledge of the committee members in whose presence articles were placed in the locker no. 1618. These are only few instances which have been concluded by the learned Judge based on evidence adduced and document produced before him and much more enumerated in paragraph nos. 60 and 63 of judgment and those are not referred herein.

After hearing Mr. Nayak, learned Senior Advocate for the applicant and considering the material placed on record alongwith findings recorded by learned Judge in the judgment, there is nothing very striking found in it, so that without threadbare analysis of evidence on record, which can normally be done at the time of final hearing of an appeal, to suspend the sentence. In the present case, Chief Manager of the Bank who was entrusted with the public money as also charge over belongings placed in the locker is found to have misappropriated, the precious belongings of the locker holders and came to be convicted for an offence under Section 409 of the Indian Penal Code as also Sections 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act and came to be sentenced only on 26.03.2019 and till today, he has already enjoyed 44 days temporary bail, out of actual imprisonment undergone of 87 days as on 29.07.2019, and therefore, there is no reason to suspend the sentence imposed upon the applicant, pending an appeal. At the same time paper book or the record is yet not prepared or received by the High Court.

6 . The case of Bhagwan Rama Shinde (supra) relied on by applicant does not lay down as straight jacket formula that in every case of fixed sentence it is to be suspended. At the same time on first occasion suspension of sentence not allowed. The accused therein again moved for it which was dismissed and motion for expediting appeal was also dismissed. In those context the decision of Hon'ble Supreme Court was rendered. It further says that if it is not suspended every effort should be made to dispose of the appeal on merits when motion for expeditious hearing of Appeal is made. In that case initially request was turned down by the High Court for suspension. Other decisions pressed into service relies on Bhagwan Rama Shinde (supra), therefore, required no specific reference. At the same time orders based on medical ground relied on by learned Senior Advocate determined on certificates issued/confirmed by Jail Authority whereas in the present case nothing is produced on record by the applicant in support of the ailment, though, temporary bail on that ground for 44 days were granted.

However, the applicant may request the Court for early hearing of his appeal, after paper book is prepared by the trial Court and received by this Court. Hence, this application is rejected. Notice is discharged.