Madhya Pradesh High Court
Sonu Pathak vs The State Of Madhya Pradesh on 3 May, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 5115 of 2023 (SONU PATHAK Vs THE STATE OF MADHYA PRADESH) Dated : 03-05-2023 Shri Praveen Dubey - Advocate for the appellant.
Shri Manoj Kushwaha - Panel Lawyer for the State.
Heard on admission.
Appeal is admitted for hearing.
Heard on I.A No.8084/2023, which is first application under Section 389(1) of the Cr.P.C for suspension of sentence and grant of bail to appellant Sonu Pathak arising out of judgment and conviction dated 28/02/2023 delivered in Sessions Trial No.600004/2015 by Fourth Additional Sessions Judge, district Satna.
The appellant has been convicted under section 489D read with section 120B and section 489A read with section 120B of I.P.C. and sentenced to undergo rigorous imprisonment for seven years with fine of Rs.3000/- and in default of payment of fine to undergo additional rigorous imprisonment for six months.
Learned counsel for the appellant invited the attention of this court to various paragraphs in the impugned judgment. Learned counsel has forcefully argued that since the learned trial court did not take into consideration non-compliance of section 100 of Cr.P.C., so the seizure of counterfeit currency from the possession of appellant is doubtful. Further, attention of this court was drawn to cross-examination of bank clerk Vinay Khatri (P.W.5) wherein he has admitted that the envelope containing Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 5/4/2023 6:46:37 PM 2 counterfeit currency was received without proper seal and that he has not sealed the envelope. Further, seizure memo bears the signature of accused Prasenjeet Mishra only. Further, the numbers on the currency notes, original and counterfeit, do not match. These discrepancies in the prosecution evidence were not duly considered and appreciated by the trial court, therefore the impugned judgment deserves to be set aside.
Learned counsel for the appellant further argued that the appellant is innocent and has been falsely implicated in the crime in question. He was on bail during trial. The judgment suffers from impropriety and illegality. It lacks proper consideration of evidence of record. Final disposal of instant appeal would take considerable time. Therefore, pending the appeal, the appellant may be released on bail.
Learned Panel Lawyer opposed the prayer for suspension of sentence and grant of bail to the appellant and submitted that learned trial court dealt with all the aforementioned arguments of defence and passed reasoned judgment. Therefore, the judgment of trial court does not suffer from any illegality or impropriety.
Heard learned counsel for the parties at length and perused the record of the court below.
Recently, Honourable the Apex Court in the case of Omprakash Sahni v. Jai Shankar Chaudhary and another decided in Criminal Appeal Nos.1331-1332 of 2023 on 2.5.2023 has held that the trial court in order to suspend the substantive order of sentence under section 389 of the Criminal Procedure Code, there ought to be something apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 5/4/2023 6:46:37 PM 3 satisfaction that the conviction may not be sustainable. The courts must endeavour to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. It was further held that the appellate court should not reappreciate the evidence at the stage of section 389 of Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution.
The lacunas pointed out by learned counsel for the appellant have been dealt with by the trial court. Considering the lacunas and inconsistencies pointed out in totality, this court does not prima facie find that the conviction is not sustainable. Therefore, without commenting on merits of the case, this court is not inclined to suspend the remaining jail sentence of the appellant.
Accordingly, I.A No. 8084/2023 is rejected.
List this case for final hearing in due course.
Certified copy as per rules.
(SANJEEV S KALGAONKAR) JUDGE ps Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 5/4/2023 6:46:37 PM