Delhi District Court
Central Bureau Of Investigation vs Rakesh C. Jain & Others on 3 January, 2023
1
IN THE COURT OF SH. ASHWANI KUMAR SARPAL,
SPECIAL JUDGE (P.C.ACT), CBI-08
ROUSE AVENUE DISTRICT COURT, NEW DELHI
CENTRAL BUREAU OF INVESTIGATION
VS
RAKESH C. JAIN & OTHERS
(Crl. Appeal No. 5/2022)
Date of Institution : 21.12.2022
Date of Disposal : 03.01.2023
(Criminal Appeal under Section 377 (2) Cr. P.C. for
seeking enhancement of quantum of punishment awarded
by Ld. ACMM-2, Rouse Avenue Court on 13.09.2022)
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03.01.2023
JUDGMENT :
1. Alongwith this appeal filed by CBI, one application for condonation of delay of 59 days is also moved. It is important to mention here that as per the chargesheet filed before the court of Ld. ACMM, the offences were committed in between years 1993 to 1995 and the FIR was lodged by complainant Small Industries Development Bank of India (SIDBI) on 22.12.2000 with the allegations that accused No. 1 Company M/s Asian Consolidated 2 Industry Ltd., accused No.2 Rakesh C. Jain, Managing Director, accused No. 3 Alok Jain, Director, accused No. 4 Sanjay Jain, Director, accused No. 5 Meera Jain, proprietor of Rajasthan Industries, accused No. 6 Gyan Prakash Aggarwal, Authorized Signatory of M/s V.K. Packaging Industries and accused No. 7 Sharad Prakash Aggarwal, partner of M/s G.C. Ribs Pvt. Ltd. in conspiracy with each other, cheated SIDBI to the tune of Rs. 6,89,75,000/-. These accused persons on the basis of some forged documents obtained credit facility under direct bill discounting scheme of the SIDBI bank.
2. The CBI after registration of the FIR on 22.12.2000 started investigation of the case and ultimately filed the chargesheet after two years in the court on 21.12.2002 without arresting any accused. For one reason or another, the trial could not be started for about 20 years. At last, the Ld. ACMM-2 Sh. Deepak Kumar framed the charges for offences under Section 120-B/420/467/468/471 IPC against all the accused persons on 13.09.2022. The accused persons pleaded guilty to the charges and accordingly, they were convicted. The Ld. Trial Court sentenced each of them to imprisonment till rising of the court and total fine of Rs.1,50,000/- upon each of the accused.
3. Now the CBI in the present appeal is alleging that sentence given to the accused persons is inadequate because the 3 wrongful loss caused to the SIDBI Bank is Rs. 6,89,75,000/- and the bank has been cheated by the accused persons in conspiracy with each other on the basis of certain forged documents and securities. Ld. PP questioned the reasoning given by Ld. Trial Court towards mitigating circumstances to give less punishment to the accused persons and also argued that due to the act and conduct of the accused persons, the case was lingered on for about 20 years and the charge was not framed because the accused persons used to move one application after another before the Trial Court and the superior courts. Ld. PP also argued that offence under Section 467 IPC attracts punishment upto life imprisonment but still the Ld. Trial Court imprisoned the accused persons till rising of the court and imposed very meager fine of Rs. 1,50,000/- upon each of the 6 accused persons, if compared with the cheated amount of Rs. 6,89,75,000/-. It is also stated that since the offence was economic offence, so enhanced punishment was required in order to teach the other criminals a lesson.
4. Ld. ACMM-2 passed a detailed order and gave various reasons why he was taking a lenient view against the accused persons. The grounds and reasoning given in the impugned order in favour of the accused persons are not disputed in the present appeal in any manner. Now question arises whether any ground exists to entertain this appeal especially when it is time barred.
45. In the condonation of delay application, it is stated that the certified copy of the judgment dated 13.09.2022 was received by CBI on 21.09.2022 which was examined at various level in the office till 15.11.2022 and thereafter, competent authority gave approval to file this appeal. The CBI sent the proposal for filing the appeal to DoPT on 18.11.2022 which gave consent for filing this appeal on 15.12.2022 and thus, there was no intentional delay in filing the same. CBI is seeking condonation of delay of 59 days for filing this appeal.
6. The appeal was required to be filed within 30 days from the date of judgment and order on sentence. Simple vague allegation that the judgment was examined at various levels in CBI office for about 1-3/4 months from 22.09.2022 to 15.11.2022 without disclosing at which level file was moved from time to time and how much time was taken for forwarding the file from one desk to another desk etc. and without explaining each days delay, no ground exists to condone the delay as prayed for. The law is well settled that government department is not entitled for any special concession in calculating the limitation period. Hence, the condonation of delay application is liable to be rejected straightway and consequentially appeal also fails. However, still ignoring the limitation point and after considering the record and the impugned order, I am of the view that even there is no merit in the present appeal and it 5 is not a fit case where any notice of the appeal should be given to the accused persons and thus, this appeal is liable to be dismissed in limine.
7. Accused Company M/s Asian Consolidated Industries Ltd.
has already undergone liquidation and official liquidator is already appointed for it as well as its name has been struck off from the record of ROC. Thus, it cannot be punished or sentenced. Otherwise also, in the present appeal, the name of this company is not mentioned as respondent which means that CBI has no grievance of not convicting or punishing the company.
8. Accused/respondent No. 1 Rakesh C. Jain is aged about 72 years and being unemployed, having no source of income. Accused/respondent No. 2 Alok Jain and accused/ respondent No. 3 Sanjay Jain both are aged about 65 years and running a grocery store and earning Rs.1,50,000/- per month. Accused/respondent No. 4 Meera Jain is aged about 62 years and a house wife with no income. Accused/respondent No. 5 Gyan Prakash Aggarwal is aged about 92 years and having no source of income whereas accused/respondent No. 6 Sharad Prakash Aggarwal is aged about 59 years with no source of income. All the accused persons from No.1 to 5 are resident of Delhi and thus, are the Sr. Citizens. Though, accused No. 6 does not come within the purview of Sr. Citizen but he is the resident of Mumbai and used to come to Delhi to face the 6 trial and he will become Sr. Citizen by next year. Thus, the age factor of the accused persons, their source of income, place of residence etc. were duly considered by the Ld. Trial Court as one of the mitigating factors for giving less punishment.
9. The CBI has not disputed the fact that all these accused persons were not previous convict or involved in any other criminal case. They were facing the trial in the court for about 20 years. The SIDBI Bank which was cheated by the accused persons has already settled the matter with them and received the payment under one time settlement. Thus, the bank has now left with no civil liability against these accused persons.
10. Ld. Trial Court also found that accused persons are having genuine feelings of remorse for their criminal act and conduct and also assured that they will not repeat such act again in future. The Ld. Trial Court duly considered the deterrent, preventive and reformative theories before imposing punishment upon the accused persons and accordingly rejected the request made by the CBI for giving harsh sentence. During Investigation also, the CBI did not opt to arrest any of the accused persons which leads to the inference that even CBI did not feel at any stage that accused persons will influence the witness or tamper the evidence or run away from the court. These grounds also goes in favour of the accused persons in 7 awarding very meager sentence.
11. Ld. PP stated that offence under Section 467 IPC under which the accused persons are convicted attracts punishment of life imprisonment but it is also important to mention here that this offence is triable by Magistrate and not by Sessions Court. Moreover, this offence is described as non cognizable offence and even after conviction, the Magistrate cannot sentence the accused persons for imprisonment for more than 3 years. Maximum to maximum the Magistrate could send the accused to CMM under Section 325 Cr.P.C., if he feels that this offence requires more punishment beyond three years. In that eventuality also, the CMM could gave a sentence of maximum 7 years imprisonment. In these circumstances, the arguments advanced by Ld. PP is liable to be rejected and mere fact that on papers, this offence under Section 467 IPC mention the sentence of life imprisonment does not create a ground to consider the enhancement of the sentence.
12. Mere fact that offence was economic offence and the SIDBI Bank was cheated is not a ground to entertain this appeal and to enhance the sentence when the bank itself has settled the matter with the accused persons and received the amount from them under one time settlement scheme. The civil liability of the accused persons, thus, has come to an end and plea taken by the Ld. PP that huge 8 loss was caused to government exchequer and the bank now does not survive.
13. If the accused persons had exercised their legal rights and moved to higher courts by filing petitions or revisions against any order of the Trial Court, then that cannot be treated as prolonging the case. The accused persons cannot be held fully responsible for delay due to which the charge could not be framed for about 20 years. On the other hand, their coming forward to plead guilty immediately upon framing of the charge and showing the remorse for their act and conduct creates a ground to take lenient view. The chargesheet shows that there were 61 prosecution witnesses who had to prove about 392 documents. Had the accused persons opted to contest the case by pleading not guilty, then the trial must have not been concluded for another 10 years. Infact, the accused persons by pleading guilty and genuinely accepting their bad act and conduct and giving assurance not to repeat the same has saved not only the precious court time but also secured a conviction order in the credit of the CBI.
14. After considering the above facts and circumstances, I am of the opinion that Ld. Trial Court has considered various aspects of the case including age factor of the accused persons, length of the trial, genuine remorse shown etc. and accordingly, by showing leniency awarded less sentence according to its discretion especially when there 9 was no minimum sentence provided under any of the offences. The above mentioned facts and circumstances going in favour of the accused persons do not require any enhancement of their sentence. It is not a fit case where this appeal should be proceeded further by issuing any notice to the accused persons and then to decide the same. Accordingly, this appeal is hereby dismissed in limine. Copy of this order be sent to Ld. Trial Court for information and appeal file be consigned to record room. If Ld. PP wants copy of this order, then the same be given to him.
Digitally signed by ASHWANIASHWANI KUMAR SARPAL KUMAR Date:
SARPAL 2023.01.03 15:17:23 +0530 Date : 03.01.2023. (Ashwani Kumar Sarpal) Special Judge (P.C. Act), CBI-08 Rouse Avenue Court, New Delhi.