Bombay High Court
Nikhil S/O. Ashok Ghate vs State Of Mah. Thr. Ps Ps Ramnagar, Tah. ... on 2 May, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
1 APL570.23 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NO. 570 OF 2023
APPLICANT : Nikhil S/o Ashok Ghate,
Aged 39 years, Occu. Service,
R/o Vitthal Mandir Ward, Chandrapur,
Tah. & Dist. Chandrapur.
VERSUS
NON-APPLICANT : The State of Maharashtra,
Through its Police Officer,
Police Station, Ram Nagar,
Tah. & Dist. Chandrapur.
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Mr. S. V. Sirpurkar, Advocate for the applicant.
Mr. Amit R. Chutke, A. P. P. for the non-applicant/State.
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CORAM : G. A. SANAP, J.
DATED : MAY 02, 2023.
ORAL JUDGMENT
1. Heard.
2. ADMIT. Taken up for final disposal forthwith by consent of the learned advocates for the parties.
3. In this application, made under Section 482 of the Code of Criminal Procedure, challenge is to the order dated 03.04.2023, passed ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 ::: 2 APL570.23 (J).odt by learned Additional Sessions Judge, Chandrapur in Criminal Appeal No. 09/2023, whereby the learned Additional Sessions Judge rejected the application (Exh.5) made by the applicant/accused for suspension of sentence.
4. The applicant/accused has challenged his conviction and sentence imposed by the Judicial Magistrate, First Class, Chandrapur for the offences punishable under Sections 409 and 201 of the Indian Penal Code. Learned Magistrate, on conviction, has sentenced the applicant to undergo rigorous imprisonment for three years for the offence punishable under Section 409 of the IPC and rigorous imprisonment for 18 months for the offence punishable under Section 201 of the IPC. The substantive sentences are ordered to run consecutively. In addition to the substantive sentence on both the counts, learned Magistrate has directed the applicant/accused to pay a compensation of Rs.2,86,00,125/- by invoking his jurisdiction under Section 357(3) of the Cr.P.C.
5. It is the case of the accused that learned Judicial Magistrate, First Class has committed patent illegality while appreciating the ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 ::: 3 APL570.23 (J).odt evidence. The accused has good case on merits. He has been in custody from the date of his arrest i.e. 01.03.2021, for which set off has been granted under Section 428 of the Cr.P.C. It is stated that the grounds of challenge to the impugned order are set out in the appeal. The appeal may take its own time for adjudication. His detention in the prison is not necessary and warranted. He is ready to abide by the conditions that may be imposed by the Court. The right of appeal has been provided under the law. He has exercised his right of appeal. If the substantive sentence is not suspended and he is not released on bail, then his right of appeal would get frustrated.
6. It is submitted that learned Additional Sessions Judge has not taken all the facts into consideration and without recording the reasons rejected the application for suspension of sentence.
7. This application has been opposed by the State. It is contended that considering the serious nature of the proved offences and the magnitude of the misappropriation, learned Additional Sessions Judge was right in rejecting the application of the accused. Learned APP further pointed out that the accused has right to apply before the learned ASJ for expediting hearing of the appeal. ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 :::
4 APL570.23 (J).odt
8. I have heard Mr. S. V. Sirpurkar, learned advocate for the applicant and Mr. Amit R. Chutke, learned Additional public Prosecutor for the State. Perused the record and proceeding.
9. The accused has been sentenced on two counts and the substantive sentences are ordered to run consecutively. The total period of substantive sentence would be 4 years and 6 months. The accused has been in jail, from 01.03.2021, for almost two years. The accused would be required to undergo the remaining substantive sentence of two years and six months. Besides, the applicant/accused has been directed to pay compensation of Rs.2,86,00,125/- (Rs. Two Crore Eighty Six Lacs One Hundred and Twenty Five only.) and in default of payment of compensation, he has to suffer simple imprisonment for six months.
10. At the outset, it would be necessary to state the relevant facts of the case of the prosecution in order to understand the gravity and magnitude of the crime committed by the accused while discharging his official duties. The accused, at the relevant time, was working as a Cashier in Chandrapur District Central Co-operative ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 ::: 5 APL570.23 (J).odt Bank, Zilla Parishad branch, Chandrapur. The informant is the Manager of the said branch of the bank. The informant reported to the police that the accused kept the amount of the customers/depositors of the bank with him. He did not credit the amount received from the customers/depositors in their account. The amount misappropriated was Rs.3,63,39,860/-. However, the investigation transpired that after having been confronted with the police case, he deposited some amount i.e. Rs.69,67,920/-. He did not deposit the misappropriated amount to the tune of Rs.2,86,00,125/-. The prosecution examined 34 witnesses to bring home the guilt against the accused. Learned Magistrate, on the basis of the oral as well as documentary evidence found the charge against the accused proved and accordingly, convicted and sentenced him as above.
11. Learned Additional Sessions Judge in the appeal filed by the accused rejected the application (Exh.5) for suspension of sentence mainly on the ground that the crime committed by him is serious. The amount misappropriated and remained to be deposited is Rs.2,86,00,125/-. Learned Judge found that the case in question is not a fit case to exercise discretion in favour of the accused. ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 :::
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12. Learned advocate for the accused submitted that the appeal filed by the accused would be rendered infructuous in case the substantive sentence during pendency of the appeal is not suspended. Learned advocate submits that the approach of the learned Judge is not in consonance with the law. Learned advocate submitted that if such an approach is adopted, then the remedy of appeal would be rendered nugatory. Learned advocate, therefore, submitted that during pendency of the appeal, the sentence is required to be suspended. He, therefore, prayed for setting aside the impugned order passed by the learned Additional Sessions Judge.
13. Learned Additional Public Prosecutor submitted that considering the serious nature of the crime, learned Additional Sessions Judge was right in rejecting the application (Exh.5). Learned APP submitted that the learned Judge has recorded the reasons for not exercising the discretion in favour of the accused. Learned APP submitted that the learned Judge has taken into account the huge amount of compensation awarded by the learned Additional Sessions Judge. Learned APP further submitted that if this Court is inclined to grant the prayer, then in that event the accused be directed to deposit the amount of compensation.
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14. I have given thoughtful consideration to the submissions advanced by the learned advocate for the accused as well as learned Additional Public Prosecutor for the State. It is to be noted that the crime in question, by applying any standard, is a serious crime. The accused was a Cashier in the bank. He accepted money from the depositors, but he did not credit the same in their respective accounts. The innocent customers/depositors have been duped and deprived of their own money. It is the case of the prosecution that the accused was indulging in gambling and in gambling, he lost the said amount. The investigation conducted in the matter revealed that the misappropriation was of a sum of Rs.2,86,00,125/- (Rs.Two Crore Eighty Six Lacs One Hundred and Twenty Five only.)
15. Learned advocate for the accused in support of his submissions relied upon following decisions of the Hon'ble Apex Court :
1. Bhagwan Rama Shinde Gosai and others .vs. Sate of Gujrat, reported at (1999) 4 SCC 421
2. Kamal .vs. State of Haryana ; reported at (2004) 13 SCC 526
3. Angana and another .vs. State of Rajasthan ;
reported at (2009) 3 SCC 767 ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 ::: 8 APL570.23 (J).odt
16. The law has been laid down on the subject in the case of Angana and another .vs. State of Rajasthan (supra) . Paragraph 14 of the said decision would be relevant for the purpose of this case. It is extracted below :
"14. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no straitjacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of the Criminal Procedure Code."
In this decision, it is held that the power of suspension of sentence is a discretionary power. The discretion has to be exercised judiciously depending on the facts and circumstances of each case. No straitjacket formula can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion.
17. Learned Additional Sessions Judge, in my view, instead of rejecting the application for suspension of sentence, ought to have ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 ::: 9 APL570.23 (J).odt exercised the discretion in favour of the accused by imposing appropriate conditions with regard to deposit of the compensation. Learned Judge while rejecting the application has not passed the order to expedite hearing of the appeal. It is true that the appeal against judgment and order of the trial Court is provided as of right. The suspension of sentence cannot be claimed as of right. It falls within the domain of discretion of the Court. The discretion however has to be exercised keeping in mind the facts and circumstances of each case. It is true that the accused has to undergo the remaining sentence of two years and six months. The accused would be required to be heard in the matter. His right of appeal would get frustrated, if he is not released on bail by suspending the sentence during pendency of the appeal. In my view, therefore, in the facts and circumstances, the case in question is a fit case to suspend the sentence and release the accused on bail, albeit, subject to appropriate condition with regard to payment of compensation.
18. The accused has misappropriated the amount of the customers/depositors of the bank. The offence has been proved against the accused. The amount of compensation is Rs.2,86,00,125/-. By ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 ::: 10 APL570.23 (J).odt applying any standard, it must be held that the gravity and enormity of the misappropriation is quite serious. The genuine and innocent customers of the bank have been duped and denied the benefit of their money. The accused is under an obligation to pay the compensation. Even if he undergoes the default sentence, he cannot be exonerated from paying the compensation. It is to be noted that at this stage the submission advanced on behalf of the accused that he has chance to succeed in appeal, cannot be made basis for not directing the accused to deposit the compensation. In my view, considering the facts and circumstances, the interest of justice would be met if the accused is directed to deposit 50% of the amount of compensation as a condition for suspension of sentence. With this, I pass the following order :
19. The application is allowed.
i] The order dated 03.04.2023 passed by the learned Additional Session Judge, Chandrapur in Criminal Revision No. 09/2023, is set aside.
ii] The application (Exh.5) for suspension of substantive sentence is allowed, subject to a condition that the applicant shall furnish solvent surety in the sum of Rs. 1,00,000/-. ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 :::
11 APL570.23 (J).odt iii] The applicant/accused shall also deposit 50% of the compensation awarded by the impugned order, being a condition for suspension of sentence and his release on bail.
iv] Liberty is granted to the accused/applicant to apply before the learned Additional Sessions Judge for expeditious disposal of the appeal. It is made clear that if such an application is made by the accused, it shall be allowed and the appeal be disposed of within six months from the date of application.
20. With these directions, the application stands disposed of.
(G. A. SANAP, J.) Diwale ::: Uploaded on - 12/05/2023 ::: Downloaded on - 19/06/2023 19:45:35 :::