Jharkhand High Court
Dr. Dineshwar Prasad Sharma @ Dineshwar ... vs The State Of Jharkhand Through Cbi on 10 May, 2019
Equivalent citations: AIRONLINE 2019 JHA 438
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 768 of 2018
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Dr. Dineshwar Prasad Sharma @ Dineshwar Prasad Sharma --- Appellant Versus The State of Jharkhand through CBI --- --- --- Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh For the Appellant: Mr. Vishnu Kr. Sharma, Advocate For the Resp- CBI: Mr. Rajiv Nandan Prasad, Advocate
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09/ 10.05.2019 Learned counsel for the appellant does not press I.A. No. 8598/2018.
Accordingly, it is dismissed as not pressed.
2. Heard learned counsel for the appellant and CBI on the prayer for suspension of sentence made through I.A. No. 4186/2018.
3. Appellant stands convicted in connection with R.C. Case No. 45(A)/1996-Pat vide impugned judgment of conviction dated 09.04.2018 and order of sentence dated 18.04.2018 passed by the Learned Additional Judicial Commissioner-I-cum-Special Judge-VII, CBI (AHD Scam), Ranchi for the offences under section 120-B read with sections 409, 420, 467, 468, 471 and 477(A) of the Indian Penal Code and sections 13(2) read with sections 13(1)(c)(d) of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for three and half years each for either of the offences under I.P.C and P.C. Act with a fine of Rs. 50,00,000/- each and in default thereof, to undergo S.I. for nine months each separately. However, both the sentences were ordered to run consecutively and not concurrently.
4. Learned counsel for the appellant submits that the appellant was the Special Veterinary Officer under Regional Directorate, Dumka between the period August 1988 to 31.07.1991. The subject period of the instant R.C. Case No. 45(A)/1996-Pat relating to fraudulent withdrawal under AHD Department from Dumka Treasury is between 1991-92 to 1995-96. The appellant was serving at a time when Dr. Parimal Chakravorty was the Regional Director, AHD, Dumka. Fraudulent withdrawal did not take place till the time appellant was posted as SVO in Regional Directorate, AHD, Dumka. For the same reason, Dr. Parimal Chakravorty, the then Regional Director, AHD, Dumka was not made accused by the CBI. Learned counsel for the appellant has referred to the statement of learned Special P.P., CBI recorded by the learned Trial Court at para-21 and 22 of the impugned judgment in support of the submission that the period when this appellant was posted under Regional Directorate, AHD, Dumka, no fake allotment or supply orders were issued by the then Regional Director, Dumka, nor were any payments made. Whatever genuine supply orders were issued by the Regional Director and supply received as against them concerning the 2 appellant, appellant faithfully certified the receipt of such supply of medicines, etc. As a matter of fact, there is no incriminating material evidence brought on record against this appellant during trial. Learned Trial Court at para-75 and 76 of the impugned judgment has discussed the role of this appellant. Though, appellant in his statement under section 313 of the Cr.PC, has denied issuance of receipts without supply having been made by the accused suppliers or being in conspiracy with co- accused persons in causing loss to the State Government, but the learned Trial Court on the basis of the statement of certain prosecution witnesses namely, 1,2,12, 108, 195 and 197 together with certain documentary evidence, has proceeded to erroneously hold this appellant guilty for fraudulent withdrawals and under the aforesaid charges. Learned counsel for the appellant submits that the Investigating Officer Ajay Kumar Jha (P.W.197) in his statement at para-99 has categorically stated that this appellant was posted till 14.08.1991. P.W.197 has also stated in his deposition that CBI did not find any incriminating material to implicate Dr. Parimal Chakravorty, the then Regional Director, AHD, Dumka as the accused in the instant R.C. case. Thus, conviction of the appellant is based on practically no legal evidence. Appellant has been suffering from severe ailment such as ischemic Heart disease and undergone Angiography which shows significant block in all three major arteries by Rajendra Institute of Medical Sciences, Ranchi. Appellant could not undertake better treatment outside due to financial scarcity and has undergone more than half of the custody against the sentence of 3½ years awarded upon him. Appellant's wife is also seriously ill. His grandson has unfortunately died in a road accident and huge expenditure had incurred in his treatment before his death. Appellant has not been made accused in any other Fodder Scam case. Learned counsel for the appellant submits that the learned Trial Court has without any justification, directed the sentences to run consecutively and not concurrently. He further submits that the same CBI Court in similar cases such as R.C. Case No. 64(A)/1996-Pat, while recording conviction under the offence charged therein and awarding sentence, consciously made them to run concurrently and not consecutively. Incarceration of the appellant for a larger period taki+ng the sentence to run consecutively would be unjust. He has referred to the cases of Dr. Shashi Kumar Sinha @ Shashi Kumar Singh in Cr. Appeal (SJ) No. 803/2018 and that of Sardendu Kumar Das @ Saradindu Kumar Das in Cr. Appeal (SJ) No. 860/2018 arising out of R.C. Case No. 45(A)/1996-Pat where this Court has been pleased to enlarge the appellant on bail having undergone custody for more than half of the sentence awarded under either of the offence of I.P.C and P.C. Act. Considering all these facts and reasons, appellant should be enlarged on bail 3 after grant of privilege of suspension of sentence without condition of pre-deposit of fine.
5. Learned counsel for the CBI has opposed the prayer for suspension of sentence on merits. He submits that incriminating material evidence has been found during trial for recording conviction as against this appellant for the charges he was tried. As such, the impugned findings are sustainable in law and on facts. However, learned counsel for the CBI does not dispute that the appellant has undergone custody for more than half of the sentence awarded under either of the offences under I.P.C. and P.C. Act. He also points out that the sentences were directed to run consecutively in the case of other co-convicts in the preset R.C. Case by the learned CBI Court. However, he is not in a position to dispute the fact that in connection with other R.C. Case, the same Court has directed sentences to run concurrently and not consecutively, such as R. Case No. 64(A)/1996-Pat.
6. I have considered the submission of learned counsel for the parties and the facts and circumstances of the case. Appellant has been convicted for the offences under the provision of I.P.C and P.C. Act and sentenced to undergo R.I for three and half years as against each of them, but the sentences have been directed to run consecutively and not concurrently. Appellant has undergone custody for about 21 months i.e. half of the sentence awarded under either of the offences of I.P.C or P.C. Act. In such circumstances, I am inclined to grant the privilege of suspension of sentence to the appellant during the pendency of the appeal. Accordingly, let the appellant Dr. Dineshwar Prasad Sharma @ Dineshwar Prasad Sharma be released on bail, during the pendency of this appeal, on furnishing bail bonds of Rs. 50,000/- (Rupees Fifty Thousand) with two sureties of the like amount each, to the satisfaction of Learned Additional Judicial Commissioner-I-cum-Special Judge-VII, CBI (AHD Scam), Ranchi in connection with R.C. Case No. 45(A)/1996-Pat, subject to deposit of fine of Rs. 50,000/- (Rupees fifty thousand) in the Court below and if not wanted in connection with any other case. The appellant would not leave the country without permission of the Learned Trial Court. He would also submit his passport, if any, before the Learned Trial court.
7. I.A. No. 4186/2018 stands disposed of accordingly.
(Aparesh Kumar Singh, J) Ranjeet/