Delhi District Court
Cbi vs . Moti Lal Mathur & Others on 22 January, 2014
IN THE COURT OF SHRI RAKESH SYAL, SPECIAL JUDGE, (PC
ACT) & (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
CBI Case No. 33/12
CBI Vs. Moti Lal Mathur & Others
22-01-2014
ORDER ON SENTENCE
1.1 Arguments on the point of sentence have already been heard and I have also perused the record.
2.1 Vide Judgment, dated 20-12-2013 :-
(a) Accused No. 1, Moti Lal Mathur has been convicted for commission of offences punishable,
(i) under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, and
(ii) under section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
(b) Accused No. 2, Yash Pal Babbar has been convicted for commission of offences punishable,
(i) under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, and
(ii) under section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
(c) Accused No. 3, Arvind Khanna has been convicted for commission of offences punishable, (i) under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988, C.C. No. 33/12 22-01-2014 1 of 10 (ii) under section 420 IPC, and (iii) under section 471 r/w section 468 IPC. (d) Accused No. 4, Ramesh Khaneja has been convicted for commission
of offence punishable under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
3.1 Sh. Manoj Shukla, Ld. P.P. has submitted that appropriate punishment of imprisonment and heavy fine be imposed upon the convicts. He has relied upon Dr. Subramanian Swamy Vs. Dr. Manmohan Singh & Others [(Civil Appeal No. 1193 of 2012) arising out of SLP (C) No. 27535 of 2010 decided on 31-01-2012] to argue that any anti-corruption law should be worked out in such a fashion as to strengthen the fight against corruption.
4.1 Sh. Shaju Francis, Ld. counsel for convict Moti Lal Mathur submits that there has been no forgery or preparation of documents by convict Moti Lal Mathur. The offence is not a brutal offence so as to shock conscience of the society and thus, his removal from the society is not warranted. It is further submitted that convict Moti Lal Mathur is 73 years old who has been a public servant for about 32 years. He has no criminal background. He is facing trial since 2003. In 2010, he has undergone open bye-pass surgery wherein he suffered an infection pursuant to which his rib bone had to be removed. He is, thus, unable to eat normal food. He is suffering from high B.P. and high cholestrol. His wife is 66 years old and is suffering from diabetes. He has two sons. The elder son, who is working in a Call Center, stays with him. The wife of the said son is also working and the convict had to take care of his 2-1/2 years old grandson. His other son is C.C. No. 33/12 22-01-2014 2 of 10 residing in Mumbai. He thus, plead for a lenient view.
4.2 Convict Moti Lal Mathur has also moved an application u/s 427 Cr.P.C. stating that he has also been convicted in C.C. No. 30/12, titled CBI Vs. Moti Lal Mathur & Others and C.C. No. 35/12, titled CBI Vs. Moti Lal Mathur & Others and that sentences in all the above cases be made concurrent.
4.3 Sh. Umesh Sinha, Ld. counsel for convict Yash Pal Babbar submits that the said convict has suffered trial for 13 years. He is 71 years old. His wife is 68 years old. He is suffering from various health problems and is to be operated for an enlarged prostrate. Therefore, a lenient view may be taken.
4.4 Sh. R.K. Kohli, Ld. counsel for convict Arvind Khanna has submitted that the amount of cheating involved in the present case is relatively very less. The offence is not a heinous crime and, therefore, removal of convict from society is not warranted. He further submits that The convict is a 55 years old family man having two children. The marriage of his daughter is fixed for 18-02-2014. Thus, a lenient view may be taken.
4.5 Convict Arvind Khanna has also moved an application u/s 427 Cr.P.C. stating that he has also been convicted in C.C. No. 28/12, titled CBI Vs. Yash Pal Babbar & Others and that sentences in both the cases be made concurrent.
C.C. No. 33/12 22-01-2014 3 of 10 4.6 Sh. Bhola Singh, Ld. counsel from DLSA for convict Ramesh
Khaneja has submitted that the said convict is a 55 years old family man having two children. He is the only earning member in his family. His daughter is a college student. The convict is not financially sound because of which he had to obtain a counsel from Legal Aid. His son had to forego his studies in order to supplement family income. His wife is suffering from migrane. Therefore, a lenient view may be taken.
5.1 It is well settled that while deciding on the sentence, both the gravity of the offence committed and the personal circumstances of the convict are to be taken into consideration. It is pertinent to refer to Ediga Anamma v/s State of Andhra Pradesh, 1974 SCC(Cri) 479, wherein the Hon'ble Supreme Court of India held, "Modern penology regards crime and criminal as equally material when the right sentence has to be picked out."
5.2 In Santa Singh v/s State of Punjab, 1976 SCC(Cri) 546, the Hon'ble Apex Court held, "A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances-extenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, his age and educational background, his record as to employment, home life, sobriety and social adjustment, his emotional and mental condition, the prospects for his rehabilitation and return to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such deterrence in respect of the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence."
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5.3 In State of MP v/s Ghanshyam Singh, AIR 2003 SC 3191, the
Hon'ble Supreme Court held,
" In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. Criminal law adheres to the principal of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Proportion between crime and punishment remains a strong influence in the determination of sentences. Imposition of sentences without considering its effect on the social order may be in reality a futile exercise."
5.4 Plato, the Greek Philosopher has said, " If punishment vary, it should not be according to the amounts stolen, but according to how far the soul of the criminal is infested by the desire to steal. Punishment is concerned with the spiritual state of the criminal, not the gravity of the crime, even though the latter may tell you something about the former."
6.1 In the present case, convict Arvind Khanna is the insured and claimant who has cheated National Insurance Company Ltd. by obtaining marine insurance claim of Rs. 2,74,705/- on the basis of a fictitious consignment and forged documents. He has concealed his identity from National Insurance Company Ltd. by giving a false name, 'Ashoka' and a false address of Ashoka Trading Syndicate. Convict Ramesh Khaneja has given a false verification report and deposited amount falsely showing it to have been recovered from the transporter/carrier. Convicts Moti Lal Mathur and Yash Pal Babbar are the Public Servants who had conspired with co-accused persons in order to obtain marine insurance claim for convict Arvind Khanna and committed criminal misconduct. From the circumstances brought on record, it appears that the offences committed by the convicts were premeditated with a motive to illegally gain money. The offences committed in this case were a C.C. No. 33/12 22-01-2014 5 of 10 part of series of different transactions in which similar offences have been committed. The convicts are mature persons having full control over their will. All the convicts have also been convicted in other connected cases. Convicts Moti Lal Mathur and Yash Pal Babbar were officers of National Insurance Company Ltd. There was a relationship of trust between them and the said Company which they have betrayed. All the convicts had played integral role in commission of offences.
6.2 Sir Francis Bacon has said, " the principal duty of a judge is to suppress force and fraud ; whereof force is more pernicious when open and fraud when it is closed and disguised."
In the instant case also, fraud has been committed in a disguised manner by concealing identity of convict Arvind Khanna.
7.1 Considering all the aggravating and mitigating circumstances with regard to facts of the case and personal circumstances of the convicts, (A) Convict Moti Lal Mathur is sentenced
(i) to rigorous imprisonment for three years and six months and fine of Rs. 20,000/- and in default of payment of fine, to undergo simple imprisonment for one month for commission of offence punishable under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1)
(d) of the PC Act, 1988, and
(ii) to rigorous imprisonment for three years and six months and fine of Rs. 20,000/- and in default of payment of fine, to undergo simple imprisonment for one month for commission of offence punishable under C.C. No. 33/12 22-01-2014 6 of 10 section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
Both the above sentences shall run concurrently.
(B) Convict Yash Pal Babbar is sentenced (i) to rigorous imprisonment for three years and six months and fine
of Rs. 20,000/- and in default of payment of fine, to undergo simple imprisonment for one month for commission of offence punishable under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1)
(d) of the PC Act, 1988, and
(ii) to rigorous imprisonment for three years and six months and fine of Rs. 20,000/- and in default of payment of fine, to undergo simple imprisonment for one month for commission of offence punishable under section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
Both the above sentences shall run concurrently.
(C) Convict Arvind Khanna is sentenced (i) to rigorous imprisonment for three years and six months and
fine of Rs. 20,000/- and in default of payment of fine, to undergo simple imprisonment for one month for commission of offence punishable under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1)
(d) of the PC Act, 1988,
(ii) to rigorous imprisonment for four years and fine of Rs. 3,00,000/- and in default of payment of fine, to undergo simple imprisonment for three months for commission of offence punishable under section 420 IPC, and
(iii) to rigorous imprisonment for two years and fine of Rs. 10,000/- and in default of payment of fine, to undergo simple imprisonment for one month for commission of offence punishable under section 471 r/w section 468 IPC.
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All the above sentences shall run concurrently.
(D) Convict Ramesh Khaneja is sentenced to rigorous
imprisonment for three years and six months and fine of Rs. 20,000/- and in default of payment of fine, to undergo simple imprisonment for one month for commission of offence punishable under section 120-B r/w section 420/471 IPC and section 13 (2) r/w section 13 (1) (d) of the PC Act, 1988.
7.2 From out of fine recovered from convict Arvind Khanna, a sum of Rs. 3,00,000/- be paid to National Insurance Company Ltd. as compensation.
8.1 Adverting to the applications u/s 427 Cr.P.C, moved by convicts Moti Lal Mathur and Arvind Khanna, it is pertinent to refer to Section 427 (1) Cr.P.C. which provides as under : -
" 427. Sentence on offender already sentenced for another offence.- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
... ........."
8.2 In Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti, Vs. Assistant Collector of Customs (Prevention), Ahmedabad and others, AIR 1988 SC 2143, while dealing with section 427 Cr.P.C., the Hon'ble Supreme Court held, " The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this C.C. No. 33/12 22-01-2014 8 of 10 rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
8.3 The above principle was applied in a recent judgment in V.K. Bansal Vs. State of Haryana & Another, (2013) 7 SCC 211, where in cases under section 138 of NI Act, 1881, the Hon'ble Supreme Court saw no reason to extend the concession of Section 427 Cr.P.C. to transactions in which the borrowing companies were different though the promoter/Director of the said companies was the same.
8.4 The Hon'ble High Court of Delhi in Ravi Kumar Vs. State (Govt. of NCT of Delhi), (Crl. App. No. 609/2003, decided on 04-07-2013), declined to make the sentences concurrent when in two cases the offences were committed on different dates in distinct and different circumstances/occurrences and there were two separate trials. In Sudhir Sharma Vs. CBI, (2011) 184 DLT 354 also, the Hon'ble High Court of Delhi has declied the benefit of Section 427 Cr.P.C., when the convict was found to be a repeat offender having committed the offence thrice.
8.5 From the aforesaid, it is clear that section 427 Cr.P.C. does not apply if the transactions relating to the offences are not the same or the facts constituting the two offences are quite different. The other cases in which convicts Moti Lal Mathur and Arvind Khanna have been convicted pertain to different transactions wherein separate marine insurance claims have been fraudulently obtained for distinct fictitious consignments in the names of different business entities/insured/claimants. Thus, there is no ground to allow the applications under 427 Cr.P.C. moved by the aforesaid convicts. The C.C. No. 33/12 22-01-2014 9 of 10 same are, therefore, dismissed.
9.1 Ahlmad has separately reported that the convicts Moti Lal Mathur, Yash Pal Babbar and Arvind Khanna have not remained in custody during investigation/trial. However, convict Ramesh Khaneja remained in custody during the trial from 23-04-2003 to 14-01-2004. Benefit of section 428 Cr. P.C is accordingly given to the said convict.
10.1 Committal warrants be prepared accordingly.
11.1 Copy of Judgment, dated 20-12-2013 and Order on Sentence be given to the convicts free of cost.
12.1 Personal bonds of the convicts are cancelled and their sureties are discharged.
13.1 File be consigned to Record Room after due compliance.
Announced in the Open Court today on 22nd Day of January, 2014.
(Rakesh Syal)
Spl. Judge, (PC Act) & (CBI) -03,
Dwarka Courts, New Delhi (ra)
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