Delhi District Court
Cbi vs . M/S Vini Iron & Steel Udyog Ltd. & Ors. on 16 December, 2017
IN THE COURT OF SH. BHARAT PARASHAR,
SPECIAL JUDGE(PC ACT) (CBI)-7,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
CC No. 79/16 (OLD CC No. 07/14)
RC No. 0219 2012 (E) 0012
Branch : CBI/EOU-II/DLI
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors.
U/s. 120-B, 120-B r/w Sec. 409/420 IPC,
Sec. 13 (1) (c)/13 (1) (d) P.C. Act &
Sec. 13 (1) (c)/13 (1) (d) P.C. Act, Sec. 409/420 IPC
In re:
Central Bureau of Investigation (CBI)
Vs.
(1) M/s Vini Iron and Steel Udyog Ltd.,
R/o Suite No. 706, Shanti Niketan,
8, Camac Street, Kolkata-1 &
30, C.R. Avenue, 4th Floor,
Kolkata.
(Through its AR Vijay Joshi)
(2) Sh. Harish Chandra Gupta
S/o Sh. K L Gupta,
R/o 273, Sector 15-A, NOIDA, GB Nagar.
(3) Sh. Ashok Kumar Basu
S/o Sh. Anil Chandra Basu,
R/o 1A, P 384-B, Keyatala Lane, Kolkata.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 1 of 14
(4) Sh. Madhu Koda
S/o Sh. Rasika Kora,
R/o Deen Dayal Nagar, Booti Road,
Ranchi.
20, Mother Teresa Cresent,
New Delhi.
(5) Sh. Vijay Joshi
S/o Late Sri Niwas Joshi,
R/o 5-D, Neel Kanth Appartment,
26-B, Camac Street, Kolkata.
APPEARANCES
Present : Ld. Senior Advocate, Sh. R.S. Cheema, Special P.P.
along with Ld. DLA, Sh. V. K. Sharma, Ld. Senior P.P.
Sh. A.P. Singh, Ld. Senior P.P. Sh. Sanjay Kumar and
Advocate Ms. Tarannum Cheema for CBI along with
IO Dy. SP Vijay Chettiar.
Ld. Counsel Sh. Harsh Kumar Sharma for convict
company M/s Vini Iron & Steel Udyog Ltd. (VISUL) and
convict Vijay Joshi.
Ld. Counsel Sh. Rajat Mathur for convict H.C. Gupta.
Ld. Counsel Sh. K.K. Patra for convict A.K. Basu.
Ld. Counsel Sh. Vijay Kumar Pandey for convict
Madhu Koda.
ORDER ON SENTENCE
1.Vide my separate judgment dated 13.12.2017, all the five accused persons i.e. A-1 company M/s VISUL, A-3 H.C. Gupta, A-6 A.K. Basu, A-7 Madhu Koda and A-8 Vijay Joshi have been convicted for various offences as under:
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 2 of 14 S. Name of Convict Final Decision No 1 M/s Vini Iron & Steel Convicted for (a) u/s 120-B IPC;
Udyog Ltd. the offences
(M/s VISUL) (b) u/s 120-B IPC r/w Section 13(1)
(d)(ii)/13(1)(d)(iii) r/w 13(2) P.C.
Act, 1988.
2 H.C. Gupta Convicted for (a) u/s 13(1)(d)(ii)/ 13(1)(d)(iii) r/w
the offences 13(2) P.C. Act, 1988;
(b) u/s 120-B IPC;
(c) u/s 120-B IPC r/w section 13(1)
(d)(ii)/13(1)(d)(iii) r/w 13(2) P.C.
Act, 1988;
3 A.K. Basu Convicted for (a) u/s 13(1)(d)(ii)/ 13(1)(d)(iii) r/w
the offences 13(2) P.C. Act, 1988;
(b) u/s 120-B IPC;
(c) u/s 120-B IPC r/w section 13(1)
(d)(ii)/13(1)(d)(iii) r/w 13(2) P.C.
Act, 1988;
4 Madhu Koda Convicted for (a) u/s 13(1)(d)(ii)/ 13(1)(d)(iii) r/w
the offences 13(2) P.C. Act, 1988;
(b) u/s 120-B IPC;
(c) u/s 120-B IPC r/w section 13(1)
(d)(ii)/13(1)(d)(iii) r/w 13(2) P.C.
Act, 1988;
5 Vijay Joshi Convicted for (a) u/s 120-B IPC;
the offences
(b) u/s 120-B IPC r/w section 13(1)
(d)(ii)/13(1)(d)(iii) r/w 13(2) P.C.
Act, 1988;
2. I have heard Ld. DLA Sh. V.K. Sharma for CBI and Ld. Counsel CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 3 of 14 Sh. Harsh Kumar Sharma for convict company M/s Vini Iron & Steel Udyog Ltd. (M/s VISUL) and convict Vijay Joshi, Ld. Counsel Sh.
Rajat Mathur for convict H.C. Gupta, Ld. Counsel Sh. K.K. Patra for convict A.K. Basu and Ld. Counsel Sh. Vijay Kumar Pandey for convict Madhu Koda on the point of sentence.
3. As regard convict Vijay Joshi, it was submitted by Ld. Counsel Sh. Harsh Kumar Sharma that he is aged about 54 years and is suffering from various ailments. He is stated to be the sole bread earner of his family comprising of his old mother aged about 72 years, a wife and two children. His wife aged about 53 years was also stated to be suffering from various ailments. As regard his daughter who is aged about 22 years, it was submitted that her marriage is likely to be fixed in this month itself. It has also been submitted that convict has no previous criminal record and that during the course of present trial his conduct has completely remained above board. It has also been submitted that convict is in very poor financial condition in as much as it has come during the course of evidence recorded the trial of present case itself that the consideration amount towards purchase of shares of M/s VISUL has not yet been paid by him. While placing reliance upon the judgment K.P. Singh vs State of N.C.T of Delhi, 2015 XI AD (S.C.) 27, a lenient view was thus prayed for.
4. As regard convict company M/s VISUL, it has been submitted by Ld. Counsel Sh. Harsh Kumar Sharma that the financial condition of the company is not good and thus it will not be in a position to pay any heavy amount of fine. A lenient view was thus prayed for.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 4 of 14
5. As regard convict H.C. Gupta, it was submitted by Ld. Counsel Sh. Rajat Mathur that he is an old person aged about 70 years and is suffering from various ailments. Convict is stated to be the sole bread earner of his family comprising of his wife and a son who is still pursuing his education. It was submitted that Convict who retired as Secretary, Government of India and thereafter also served as Member Competition Commission of India for a period of four years had a completely unblemished service record. He was stated to be having no other source of income except pension being given to him by Government of India and as a result of conviction he even runs the risk of losing his pension. It was also submitted that the conduct of convict during the course of present trial has completely remained above board. It was also submitted that as per the prosecution case itself there has been no allegations against the convict of any nature whatsoever that any financial gain was obtained by him. A lenient view was thus prayed for.
6. As regard convict Ashok Kumar Basu, it was submitted by Ld. Counsel Sh. K.K. Patra that convict is aged about 69 years and is the sole ray of hope of his aged wife who too is of 67 years and is also suffering from various ailments. It was further submitted that the only son of convict is settled abroad and thus there is no one to look after the old aged wife of convict in his absence. It was also submitted that though convict is based in Kolkata but during the course of entire trial he has been regularly appearing except when he himself had to undergo some heart procedure on account of his various ailments. It was also submitted that convict has retired as Chief Secretary, State CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 5 of 14 of Jharkhand after having put in 35 years of service. His entire service career was also stated to be completely unblemished. It was also submitted that there is no allegation of even the prosecution that in the entire matter any financial gain was obtained by the convict. A lenient view was thus prayed for.
7. As regard convict Madhu Koda, it was submitted by Ld. Counsel Sh. Vijay Kumar Pandey that convict is aged about 46 years. His family is stated to be comprising of his wife and two minor daughters aged about 1 ½ year and 9 years. Convict is also stated to be suffering from a number of ailments. It was also submitted that despite being based at Jharkhand, convict regularly attended the Court and never made any attempt to delay the trial. It was also submitted that the conduct of convict during the course of present trial has completely remained above board. A lenient view was thus prayed for.
8. On the other hand, Ld. DLA Sh. V.K. Sharma submitted that the present case is a classic case of corruption involving highly paced public servants. It was also submitted that the very nature of allegations does not call for any lenient view. As regard various mitigating circumstances as submitted by Ld. Counsels for different accused persons it was submitted that the same are not of such a nature, which may call for any leniency in favour of the convict persons. While placing reliance upon the cases (i) Shanti Lal Meena vs State (NCT of Delhi), Central Bureau of Investigation, (2015) 6 SCC 185, (ii) Subramanian Swamy vs Manmohan Singh and Another, (2012) 3 SCC 64, (iii) Nimmagadda Prasad vs CBI, CA CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 6 of 14 No. 728 of 2013, (iv) Ram Narain Popli vs Central Bureau of Investigation, Appeal (Crl.) 1097 of 1999 and (v) Neera Yadav vs CBI, (2017) 8 SCC 757, Mukesh Jain vs CBI, Bail Application No. 2179/2009, it was submitted that convict persons do not deserve any leniency. Ld. DLA Sh. V.K. Sharma strongly prayed for imposition of maximum period of imprisonment and a heavy fine against the convict persons stating that such white collar criminals should be dealt with a heavy hand. It was also submitted by Ld. DLA that imposing meager sentences or taking too sympathetic view will be result-wise counter productive in the long run and against societal interest which needs to be also cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
9. I have carefully perused the record.
10. A sentence of punishment certainly poses a complex problem which requires a balancing act between the competing views based on the reformative, the deterrent as well as the retributive theories of punishment. Accordingly, a just and proper sentence should neither be too harsh nor too lenient. In judging the adequacy of a sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individual or the society, effect of punishment on offender, are some amongst many other factors which should be ordinarily taken in to consideration by the courts.
11. In these circumstances, the necessity of there being a proportion between the offences and punishment has been long felt.
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 7 of 14 However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic.
i. It has been stated that the punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.
ii. The more deficient in certainty a punishment is, the severer it should be.
iii. The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it, and iv. Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.
However, it has also been observed that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed up as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire the people with a sentiment of aversion for those vices which prepare the way for crime.
12. Off-late the anti social activities of persons of the upper socio- economic strata of the society in their occupation and which have come to be known as "white collar crimes" have attracted attention.
"White collar criminals" have come to be defined as "a person of the upper socio-economic class who violates the criminal law in the course of his occupational or professional activities". Such "white CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 8 of 14 collar crimes" are in fact more dangerous to the society than ordinary crimes, firstly, because the financial losses are much higher, and, secondly because of the damages inflicted on public morale. The average loss from ordinary crimes such as burglaries, robberies and larcenies etc. may run into few thousand rupees only but the loss which the "white collar crimes" may cause run not only in lacs but in crores of rupees. However it is also true that to find criminality in such acts committed by "white collar criminals" is often a difficult task primarily because they are committed after much deliberations and planning undertaken by well trained minds having a higher status in the society.
13. Moreover the criminal behaviour of such "white collar criminals"
which may include businessman, industrialists, entrepreneurs, traders, politicians, bureaucrats or well qualified professionals can not be simply explained on the basis of various theories developed to explain causation of traditional crimes such as poverty or lack of infrastructural facilities or recreational facilities or feeble mindness or emotional instability. On the other hand such persons are not only capable but are also emotionally balanced and in no sense pathological. The only reason which may however explain such behaviour of "white collar criminals" is their greed or lust to acquire maximum material resources in the name of their business, taking benefit of open competition, economy and individual freedom. However the inevitable result of all the aforesaid acts is the large scale exploitation of the public by the businessmen and professionals in the course of their occupational activities.
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14. However before proceeding further, I may state that keeping in view the peculiar nature of facts and circumstances of the present case coupled with the gravity of offence the convict persons does not deserve to be extended the benefit of probation.
15. Thus keeping in view the role played by each of the convict persons as has been already discussed by me in detail in my judgment dated 13.12.2017, and the mitigating circumstances as have been put forth by the convict persons coupled with their conduct during the course of trial, I am of the considered opinion that the interest of justice will be suitably met if the convict persons are sentenced to following punishment for the various offences for which they stand convicted.
(A) CONVICT COMPANY M/S VISUL
(i) For the offence u/s 120B IPC and section 120B IPC r/w section 13(1)(d)(ii)/13(1)(d)(iii) r/w Section 13(2) P.C. Act, P.C. Act, 1988, convict company M/s VISUL is sentenced to pay a fine of Rs. 50 lacs (Rupees Fifty Lacs Only).
In case of failure to pay the fine amount as above by the company necessary action for realization of fine be initiated against it as per due process of law.
(B) CONVICT VIJAY JOSHI
(i) For the offence u/s 120B IPC and section 120B IPC r/w section 13(1)(d)(ii)/13(1)(d)(iii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 10 of 14 convict Vijay Joshi is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 25 lacs (Rupees Twenty Five Lacs). In default of payment of fine convict Vijay Joshi shall further undergo simple imprisonment for a period of one year.
(C) CONVICT H.C. GUPTA
(i) For the offence u/s 120B IPC and section 120B IPC r/w section 13(1)(d)(ii)/13(1)(d)(iii) r/w Section 13(2) P.C. Act, P.C. Act, 1988, convict H.C. Gupta is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 20,000/- (Rupees Twenty Thousand). In default of payment of fine convict H.C. Gupta shall further undergo simple imprisonment for a period of two months.
(ii) For the offence of criminal misconduct by a public servant i.e. u/s 13(1)(d)(ii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, convict H.C. Gupta is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 40,000/- (Rupees Forty Thousand) In default of payment of fine convict H.C. Gupta shall further undergo simple imprisonment for a period of four months.
(iii) For the offence of criminal misconduct by a public servant i.e. u/s 13(1)(d)(iii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, convict H.C. Gupta is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 40,000/-
CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 11 of 14 (Rupees Forty Thousand) In default of payment of fine convict H.C. Gupta shall further undergo simple imprisonment for a period of four months.
It is however directed that the substantive period of imprisonment of convict H.C. Gupta shall run concurrently.
(D) CONVICT ASHOK KUMAR BASU
(i) For the offence u/s 120B IPC and section 120B IPC r/w section 13(1)(d)(ii)/13(1)(d)(iii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, convict Ashok Kumar Basu is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 20,000/- (Rupees Twenty Thousand). In default of payment of fine convict Ashok Kumar Basu shall further undergo simple imprisonment for a period of two months.
(ii) For the offence of criminal misconduct by a public servant i.e. u/s 13(1)(d)(ii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, the convict Ashok Kumar Basu is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 40,000/- (Rupees Forty Thousand). In default of payment of fine convict Ashok Kumar Basu shall further undergo simple imprisonment for a period of four months.
(iii) For the offence of criminal misconduct by a public servant i.e. 13(1)(d)(iii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, the convict Ashok Kumar Basu is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 12 of 14 fine of Rs. 40,000/- (Rupees Forty Thousand) In default of payment of fine convict Ashok Kumar Basu shall further undergo simple imprisonment for a period of four months.
It is however directed that the substantive period of imprisonment of convict Ashok Kumar Basu shall run concurrently.
(E) CONVICT MADHU KODA
(i) For the offence u/s 120B IPC and section 120B IPC r/w section 13(1)(d)(ii)/13(1)(d)(iii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, convict Madhu Koda is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 5 lacs (Rupees Five Lacs) In default of payment of fine convict Madhu Koda shall further undergo simple imprisonment for a period of six months.
(ii) For the offence of criminal misconduct by a public servant i.e. u/s 13(1)(d)(ii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, the convict Madhu Koda is sentenced to rigorous imprisonment for a period of 3 (Three) years and to also pay a fine of Rs. 10 lacs (Rupees Ten Lacs) In default of payment of fine convict Madhu Koda shall further undergo simple imprisonment for a period of nine months.
(iii) For the offence of criminal misconduct by a public servant i.e. 13(1)(d)(iii), r/w Section 13(2) P.C. Act, P.C. Act, 1988, the convict Madhu Koda is sentenced to rigorous imprisonment for a CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 13 of 14 period of 3 (Three) years and to also pay a fine of Rs. 10 lacs (Rupees Ten Lacs) In default of payment of fine convict Madhu Koda shall further undergo simple imprisonment for a period of nine months.
It is however directed that the substantive period of imprisonment of convict Madhu Koda shall run concurrently.
16. A copy of this order be given free of cost to all the convict persons.
17. All the convict persons have been apprised that if they desire to file an appeal against the judgment, then they can take assistance of Ld. Secretary, Delhi High Court Legal Services Committee, Room No. 34, Lawyers Chamber Block, New Delhi for further assistance.
18. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR) TODAY ON 16.12.2017 SPECIAL JUDGE, (PC ACT) (CBI)-7, NEW DELHI DISTRICT PATIALA HOUSE COURTS NEW DELHI CBI Vs. M/s Vini Iron & Steel Udyog Ltd. & Ors. (Order on Sentence dated 16.12.2017) Page No. 14 of 14