Jharkhand High Court
Madan Mohan Pathak vs Union Of India Through S.P. C.B.I. (Ahd ... on 18 October, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 717 of 2023
Madan Mohan Pathak ..... Appellant
Versus
Union of India through S.P. C.B.I. (AHD Scam), Ranchi
...... Respondent
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CORAM: HONBLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant(s) :- Mr. Saurabh Shekhar, Advocate Mr. Anurag Kumar, Advocate For the C.B.I :- Mr. Anil Kumar, A.S.G.I. Ms. Chandana Kumari, A.C. to A.S.G.I Mr. Nitish Parth Sarthi, A.C. to A.S.G.I.
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I.A. No. 9051 of 2023.
03/18.10.2023 This appeal was already admitted vide order dated 06.10.2023.
2. Heard Mr. Saurabh Shekhar, learned counsel for the appellant and Mr. Anil Kumar, learned A.S.G.I., appearing for the C.B.I.
3. This interlocutory application has been filed for suspension of sentence of the appellant and release him on bail, during the pendency of this appeal.
4. Learned counsel appearing for the appellant submits that by judgment dated 28.08.2023 the appellant is convicted along with others in connection with R.C. Case No. 48(A)/1996 for the offences under Section 120B read with Sections 409, 420, 467, 468, 471 and 477-A of the Indian Penal Code, further convicted under Sections 420, 467, 468 and 471 of the Indian Penal Code and later on 01.09.2023 sentenced the appellant under Section 120-B read with Sections 409, 420, 467, 468, 471 and 477-A of the Indian Penal Code R.I. for four years with fine of Rs. 3,00,000/-. Further under Sections 420, 467, 468 and 471 of the Indian Penal Code a common sentence for all IPC Sections R.I. for four years with fine of Rs. 1,00,000/- and further ordered that in default of payment of fine, further SI for six months in each Section. All these sentences were directed to run concurrently and the period undergone shall be set off has been ordered.
5. Learned counsel for the appellant submits that 2 there is no evidence to prove that the appellant was beneficiary on part of the firms as have been mentioned in the judgment. He submits that there is nothing on the record to show that the appellant has benefited on account of money being raised on behalf of the firms and in the absence of identification of signature of the appellant over the supplier's bill, entire prosecution case fails. He submits that the association of the appellant with the firms has been presumed by the learned court without there being any cogent evidence. He further submits that exhibit 47 series which are the chart of medicines, are not connected with the appellant therefore, the reliance on these documents to prove a case against the appellant is misplaced. He submits that in case of another accused in the present matter, namely, Suraj Gandhi, he has been found involved in the present case as proprietor of M/s Adarsh Pharma, Patna, M/s Magadh Distributors, Patna, M/s Veterinary House, Muzaffarpur, for raising false supplier's bills worth of Rs. 44,63,453.82/-, and on the basis of these allegations he has been convicted and sentenced for maximum of three years. When the above is contrasted with the case of the appellant, he has been found guilty for raising false supplier bills worth Rs. 19,66,851.25/-, and even though this amount is much less than the amount for which Suraj Gandhi has been found guilty of, the appellant has been granted maximum sentence of 4 years, whereas the said Suraj Gandhi has been found guilty and convicted for a sentence of 3 years only. This also raises issue of treating the said Sunil Gandhi better than the present appellant, though his case is worse than that of the present appellant. He further submits that at paragraph No.122 of the judgment, the learned Court has said that the suppliers who are involved in illegal withdrawal of money between Rs. 7 lakh Rs. 22 lakhs, for them punishment up to three years has been awarded. In the case of present appellant, the defalcation amount, as founded by the learned Court is to the tune of Rs. 19,66, 851.25/-, in such an eventuality, the case of the appellant should have been treated as that of other suppliers, and lesser sentence of 3 years.
6. Learned counsel for the appellant further submits that 3 the appellant has withdrawn amount of Rs. 19,57,000/- for raising false suppliers bills. He submits when the defrauded amount was more than 20 lakhs the learned trial court awarded sentence of four years whereas on less then 20 lakhs of defrauded amount the learned trial court awarded sentence of three years and for a sum of Rs. 19,57,000/- the present appellant has been awarded sentence of four years thus there is disparity in sentence, so far as the appellant is concerned. He further submits that identical was the situation in the case of Rajan Mehta Vs. State of Jharkhand through C.B.I. in Criminal Appeal (Sj) No. 740 of 2018 arising out of fodder scam cases and considering that aspect of the matter the Co-ordinate Bench vide order dated 02.11.2018 has been pleased to suspend the sentence and directed to deposit a sum of Rs. 2.5 lakhs being the fine amount. He submits that appellant has undergone custody for more than six months. He submits that the appellant is suffering from several ailment and to substantiate his argument he refers to medical prescriptions annexed with the said I.A. On these grounds he submits that the sentence of the appellant may be suspended.
7. Mr. Anil Kumar, learned A.S.G.I. appearing on behalf of the C.B.I. submits that the case of the appellant has been considered in para 43 and 106 of the judgment. He submits that the amount so far as appellant is concerned the allegation is that the appellant defrauded Rs. Rs. 19,57,000/- however, the appellant has been sentenced for four years. He submits that in the amount involved more than Rs. 20 lakhs the learned Trial Court awarded sentence of four years however, he submits that there is no illegality in the impugned judgment.
8. Looking into the trial court judgment in para 106 it appears that withdrawal amount is less than twenty lakh wherein the cases where more than twenty lakhs has been defrauded the learned trial court has awarded sentence of four years and for lesser amount of Rs. Twenty lakhs the sentence was awarded for three years by the learned trial court. Thus, prima facie it appears that the learned trial court has erred in awarding the sentence of four years so far as appellant is concerned. In the case where 4 three years sentence has been awarded provisional bail has been granted by the learned trial court and in some of the cases this court confirmed the said provisional bail.
9. In view of the aforesaid facts and circumstances taken together with the fact that the appellant has undergone custody for one year and three months against the awarded sentence, and further considering that the Co-ordinate Bench of this Court has suspended the sentence even counting the production warrant in Criminal Appeal (SJ) No. 737 of 2018 dated 27.07.2018 and Criminal Appeal (SJ) No. 130 of 2022 dated 13.05.2022, I am inclined to suspend the sentence of the appellant by enlarging him on bail. Accordingly, the appellant be released on bail, during the pendency of this appeal, on furnishing bail bonds of Rs. 25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount each, to the satisfaction of Learned Additional Judicial Commissioner-VII- cum-Special Judge, CBI-II (AHD), Ranchi in connection with R.C. Case No. 48(A)/1996, subject to deposit of 1,20,000/- (Rs. One lakhs) of the fine amount before the learned court 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 and the appellant and his bailors shall not change their addresses or mobile numbers without permission of the learned Trial Court.
10. The aforesaid interlocutory application is disposed of.
( Sanjay Kumar Dwivedi, J) Satyarthi/-