Madhya Pradesh High Court
Sanjay Kumar Tembhare vs The State Of Madhya Pradesh on 10 May, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 3656 of 2023 (SANJAY KUMAR TEMBHARE Vs THE STATE OF MADHYA PRADESH) Dated : 10-05-2023 Shri Sharad Gupta - Advocate for the appellant.
Shri J. S. Parihar - Panel Lawyer for the State.
Heard on admission.
Appeal is admitted for hearing.
Heard on I.A. No.5729/2023, which is an application under Section 389 of the Cr.P.C for suspension of sentence and grant of bail to appellant Sanjay Kumar Tembhare arising out of judgment dated 02/03/2023 delivered in Sessions Trial No.1300075/2016 by the Third Additional Sessions Judge, Seoni.
T h e appellant has been convicted for the offences punishable under section 419/420 of IPC and sentenced to undergo R.I. for 2 years with fine of Rs.1,000/-, section 420/120 of IPC and sentenced to undergo R.I. for 7 years with fine of Rs.2,000/-, section 467/120 of IPC and sentenced to undergo R.I. for 10 years with fine of Rs.2,000/-, and section 468/120 of IPC and sentenced to undergo R.I. for 3 years with fine of Rs.1,000/-, with default stipulations.
According to the prosecution case, on 1.10.2010 in Criminal Appeal No.53/2010 listed before the Sessions Judge, Seoni, Jaylal was the accused and in order to secure acquittal of Jaylal in the appeal, the appellant herein fradulently impersonated one Maniram in place of complainant Jhanaklal and also obtained his signatures on the compromise petition and the court proceedings. The appellant identified Maniram as Jhanaklal. Thus, appellant aided in the offence of cheating by impersonation and forgery.
Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 5/11/2023 5:31:28 PM 2Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the case. The trial Court has not properly appreciated the oral and documentary evidence available on record. Prosecution has failed to prove involvement of appellant in alleged offence. The verification/ identification of complainant is not proved to be in the handwriting of the appellant. None of the witnesses have stated that appellant has identified Jhanaklal and signed on verification. No report of handwriting expert was called. Appellant is not a beneficiary of the forgery. He has not aided or conspired in the act. Despite there being no evidence against the appellant, he was erroneously convicted by the Trial Court, merely on basis of enquiry conducted by the then learned Sessions Judge. Final disposal of instant appeal would take considerable time. Hence, prayer has been made to suspend the jail sentence of the appellant. He was on bail during trial. The appellant was sent to judicial custody since the date of judgment.
Learned Panel Lawyer opposed the prayer for suspension of sentence. Heard learned counsel for the parties and perused the record and judgment of the trial court.
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 order dated 2.5.2023 held that 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 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 Signature Not Verified can be said to be a case in which, ultimately the convict stands for fair chances Signed by: PRASHANT SHRIVASTAVA Signing time: 5/11/2023 5:31:28 PM 3 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 argument advanced by learned counsel for appellant has substance. It is apparent from the record that none of the witnesses have stated that the identification/verification of complainant was done by the appellant. Thus prima facie case for suspension of sentence is made out.
Considering the aforesaid factual backdrop and without expressing any conclusive opinion on merits, this Court deems it proper to suspend the remaining jail sentence of the appellant. Accordingly, I.A No. 5729/2023 is allowed.
Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of the appellant is hereby suspended and it is directed that the appellant be released on bail on his furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court with a further direction to appear before the trial Court, Seoni, on 12 th July, 2023 and also on such other dates as may be fixed by the trial Court in this regard during the pendency of this appeal.
List this case for final hearing.
Certified copy as per rules.
(SANJEEV S KALGAONKAR) JUDGE ps Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 5/11/2023 5:31:28 PM