Jharkhand High Court
Harish Kumar @ Harish Kumar Khanna vs The State Of Jharkhand Through C.B.I. ... on 13 April, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 200 of 2018
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Harish Kumar @ Harish Kumar Khanna ..... Appellant
vs.-
The State of Jharkhand through C.B.I. (AHD), Ranchi....... Respondent
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CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
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For the Appellant : Mr. Kripa Shankar Nanda, Adv.
For the Respondent : M/s. Rajiv Sinha, A.S.G.I
Rajiv Nandan Prasad & Niraj Kumar.
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3/13.4.2018 Heard learned counsel for the appellant and learned A.S.G.I
representing C.B.I on the prayer for suspension of sentence made through I.A. No. 1663 of 2018.
2. Appellant stands convicted by learned Court of Additional Judicial Commissioner-VII-cum-Special Judge (AHD), C.B.I.-I, Ranchi in connection with R.C. Case No. 68(A)/1996 for the offences under Sections 120-B/420, 120-B/467, 120-B/468 and 120-B/471 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for 5 years each along with a fine of Rs. 25,000/- and in default whereof, to undergo Simple Imprisonment for three months each. All the sentences have been directed to run concurrently and the period undergone shall be set off.
3. Learned counsel for the appellant has made the following submission in support of the prayer. Learned counsel has referred to the documents exhibited by the appellant referred to at Page-233 of the impugned judgment in conjunction with statements made under Section 315 Cr. PC by him as D.W.7 at Page-220 of the same judgment. He has referred to the findings recorded by learned Court on the role of supplier at Para-24 at Page-265, where reference has been made to the statement made by the appellant under Section 315 Cr. PC. Reference is made to the statement of Investigating Officer (P.W.-199), Ajay Kumar Jha discussed at Page-127 of the impugned judgment. He has also placed reliance upon the order passed by Hon'ble Supreme Court in Criminal Appeal No. 517 of 1998 at Annexure-1 to the supplementary affidavit dated 14th March, 2018, wherein he has been granted bail during trial in connection with this case taking into account the fact that he was found by the Investigating Agency to be a sleeping partner in the delinquent Firm and that learned 2. Additional Solicitor General had not opposed the prayer. Learned counsel has also made reference to the Partnership Deed (Ext.-B/1) adduced in the present case which shows that a Partnership was constituted on 1st April, 1992 between the appellant and Smt. Madhu Mehta, wife of Rajan Mehta. Reference has been made to Clause-VI of Partnership Deed where it has been categorically stated that yearly remuneration shall be paid to only Smt. Madhu Mehta and not to Shri Harish Kumar Khanna i.e., appellant, who is sleeping partner. Learned counsel for the appellant has also placed reliance on the order dated 1st October, 2007 passed in Cr. Appeal (S.J.) No. 939 of 2007 enclosed to the supplementary affidavit wherein this Court had been pleased to enlarge him on bail in connection with R.C. Case No. 66A of 1996, taking into account that he was a sleeping partner in the Firm, M/s. Asian Breeders. Learned counsel for the appellant submits that he was partner of M/s. Asian Breeders till 31st March, 1992 and thereafter, Partnership Deed was dissolved on 1st April, 1992. Another Partnership was constituted with Madhu Mehta and she became the active partner of M/s. Asian Breeder. These are borne out from the findings recorded by learned trial court at Page-265 where reference to the statements made by this appellant under Section 315 Cr.PC have been made.
4. He submits that Madhu Mehta, who was active partner of the Firm, had also been convicted in the present R.C. Case but sentenced to undergo imprisonment of only 3 years along with fine, perhaps keeping into account that she is a lady. Learned counsel has also placed reliance upon the order dated 22nd August, 2008 passed in Cr. Appeal (S.J.) No. 925 of 2008, whereby the appellant was granted bail in connection with R.C. Case No. 51A/1996 again taking into account that he was a sleeping partner, a fact which was accepted by Rajan Mehta in his statement under Section 313 Cr.PC. Learned counsel has relied upon the judgment rendered by Apex Court in the case of Katta Sujatha (Smt.) Vs. Fertilizers & Chemicals Travancore Ltd. reported in (2002) 7 SCC 655 in support of his submission that when there are no allegations in the complaint that when the partner was In-charge of, and was responsible to the firm, in conduct of business of the Firm and that the offence was committed with his consent or connivance or that it was attributable to 3. neglect on his part, in that event prosecution against such a partner is not maintainable. Learned counsel for the appellant submits that for the very reason that he was sleeping partner of Firm M/s. Asian Breeders, learned Courts have been pleased to grant him bail even during trial in the present case and after conviction in other R. C. Cases,, referred to earlier, both of which relates to the same Chaibasa Treasury. The present R. C. Case relates to fraudulent withdrawal for the period 1992-93 from the same Chaibasa Treasury during which period, the partnership had been reconstituted vide Ext. B/1 and the appellant was a sleeping partner. As such, appellant has been in custody for only 6 months i.e., about 3 months during trial and thereafter since the date of his conviction on 24th January, 2018. Therefore, appellant deserves to be granted the privilege of suspension of sentence.
5. Learned A.S.G.I representing C.B.I has opposed the prayer on merits. He submits by reference to the findings made by learned trial court at page-265 and also at paragraphs 26, 27 and 28 at page 302 to 305 of the impugned judgment. He submits that learned trial court has taken into account the fact that the Firm, M/s. Asian Breeders had made supplies to Animal Husbandry Department during the said period to the tune of Rs. 9,90,900/- Madhu Mehta, wife of Rajan Mehta was partner of M/s. Asian Breeders which had received the aforesaid amount. All the suppliers in conspiracy with the officials of the department and politician, have duped the State Exchequer by fraudulent withdrawal against fake supplies and fake vouchers. Therefore, appellant cannot take the benefit of being the sleeping partner. Appellant has also not remained in custody for half of the sentence awarded.
6. I have considered the submission of learned counsel for the parties and the facts and circumstances noted above, based upon material evidence and the discussions made thereupon by learned trial court. Ext.- B/1, a Partnership Deed dated 1st April, 1992 adduced by the appellant shows that the appellant is a sleeping partner of the Firm, M/s. Asian Breeders, since its constitution with effect from 1st April, 1992. The instant case relates to fraudulent withdrawal for the period 1992-93 under Animal Husbandry Department from Chaibasa Treasury. It also appears from perusal of the enclosed Annexures to supplementary affidavit that 4. the appellant was granted bail during custody by the Apex Court taking into account the materials recorded by the Investigating Agency that the appellant was a sleeping partner in the delinquent Firm. Appellant on his conviction in other R.C. Cases being R.C. Case No. 66A of 1996 and 51A of 1996, both of which relate to same Chaibasa Treasury, had been granted the privilege of suspension of sentence by this Court by orders dated 1st october, 2007 and 22nd August, 2008 passed in Cr. Appeal (S.J.) No. 939 of 2007 and Cr. Appeal (S.J.) No. 925 of 2008. The Investigating Officer as P.W.199, in his statement, had also stated that there were five such cases relating to Chaibasa Treasury including R. C. Case No. 66A of 1996 and 51A of 1996 apart from the present case. It further appears that one of the partners of the said Firm, who is stated to be the active partner, Madhu Mehta has been awarded sentence of 3 years only by learned trial court.
7. On consideration of all these facts and circumstances of this case and the submissions of learned counsel for the parties, I am inclined to grant the privilege of suspension of sentence to the appellant. Accordingly, let the appellant, Harish Kumar @ Harish Kumar Khanna be released on bail, during pendency of the 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 Court of Additional Judicial Commissioner-VII-cum-Special Judge (AHD), C.B.I.-I, Ranchi in connection with R.C. Case No. 68(A)/1996, subject to deposit of fine amount in the learned Court below awarded by learned Trial Court. 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.
I.A. No. 1663 of 2018 stands disposed of accordingly.
(Aparesh Kumar Singh, J) jk