PRAVINCHANDRA BHOGILAL SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(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 dated 26.03.2019 in Special CBI Case No.1 of 2007.

(2.) 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 howmany 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 (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 support 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.